Robbery case not leading to jail

R. v. Mirza, 2011 ONCJ 49 is a recent Ontario Court of Justice decision. I note it here because the result is perhaps unexpected.

The case involved a twenty-nine year old man with no prior criminal record who pleaded guilty to robberies of two young women he came across on public transit.

The two women were robbed in two different parts of Toronto several weeks apart. These were not entirely random acts, in that the women were targeted once they caught the defendant's eye. Both women were selected because he found them attractive. He followed a similar pattern, effectively following them some distance, then keeping a look-out before accosting them. He applied force to each of them in varying degrees before running away.

The defendant's home was searched as part of the police investigation and property of the women robbed was found. Also found was a collection of pornography, some tending to violence. the defendant likely suffers from a form of paraphilia. Medical evidence put to the Court concluded that the defendant's likelihood of fascination with sexual violence was substantial, but currently unverifiable.

The defendant was under strict house arrest, without problems, for two years before trial. Additionally, the defendant had suffered some personal challenges following coming to Canada as a teenager.

This writer would have assumed a term of incarceration was almost certain. Whether jail would help to rehabilitate is another issue -- it seems that the problem here is one of mental health and jail is not a good place for treatment. Regardless, jail would serve to denounce the dreadful conduct. And denunciation is important for society.

In any event, the Court did not impose a term of imprisonment. The Court held:

[35]         The real question at the heart of this hearing was whether a sentence other than a jail sentence could adequately address the principle of denunciation.

[36]         In my view the relevant principles that require particular emphasis in the circumstances of this case are denunciation and both specific and general deterrence. Rehabilitation is also an important consideration, but not the predominant one.

[37]         After much deliberation, and upon balancing of all of the relevant factors, I concluded that a term of imprisonment was not required in the particular circumstances of this case and this offender. What follows are the considerations I took into account in arriving at that conclusion.

[38]         No doubt the offences of robbery and assault are serious offences. The victims were targeted and vulnerable. They were terrified as anyone would be, but especially women travelling alone and relying on public transport to get home. However, one cannot lose sight of the fact that the degree of physical violence used was not extreme. The first incident, without minimizing the offence, was effectively a purse snatching. In the second incident, no words were exchanged and force was applied to the complainant's neck for a very short period of time.

[39]         In my view, the Crown's position for a custodial disposition was driven primarily by the stalking aspect of the offences coupled with concerns arising from the vast collection of pornographic material found at Mr. Mirza's residence when he was arrested, some of which was violent in nature. Those concerns are legitimate and deserve careful consideration.  They were in fact echoed by Dr. MacDonald.  However, Dr. MacDonald made no clear, unequivocal or specific findings that Mr. Mirza is in fact sexually deviant, or that the offences were likely sexually motivated, much less that there is a real risk that he may be violent, particularly against women, in the future.  At best all Dr. MacDonald was able to conclude was that "[i]n all likelihood, he has some form of paraphilia. …the likelihood of an unreported fascination with sexual violence is substantial, but currently unverifiable". One thing that emerged from the report was that further assessment was necessary and a specific referral to another doctor specializing in sexual behaviours was recommended.

[40]         The record confirms that Mr. Mirza appears to have little insight into his conduct and this is of some concern. However, the court in my view ought to be careful not to place undue emphasis on this failing.   While I rejected the submission that at twenty-nine Mr. Mirza is a "youthful offender", what emerges from the record (the pre-sentence report, Dr. MacDonald's assessment, and the DVD statement of the defendant) is that Mr. Mirza is immature for his age both emotionally, socially, and psychologically. He is an only child and although he is an adult who contributes financially to the household, he appears to behave and to be treated by his parents almost as a teenager.  At the time of sentencing, Mr. Mizra continued to live at home with his parents in a state of co-dependency.
Aggravating Factors

[41]         In balancing all of the relevant factors, I considered the following aggravating factors that militated for a custodial disposition:

                                 •          The defendant preyed on two young women in two different parts of the city several weeks apart. These were not entirely random acts, in that the women were targeted once they caught the defendant's eye. Both women were selected because he found them attractive. He followed a similar pattern, effectively following them some distance, then keeping a look-out before accosting them. He applied force to each of them in varying degrees before running away.

                                 •         The psychological impact of the offences on the victims has been significant. Both complainants have been robbed of their sense of security and independence which they will not easily recover, if ever.  

 

Mitigating Factors

[42]         I also considered the following mitigating factors; the defendant pleaded guilty and saved the community the time and expense of a preliminary inquiry and a trial. The plea was not as early a plea as possible as it was entered on the first day of what was expected to be a three day preliminary inquiry. Still, Mr. Mirza is to be given credit for accepting responsibility for his actions by pleading guilty and for sparing the complainants the ordeal of reliving the incidents by having to testify about them in detail, not once but possibly twice.

[43]         The defendant has no prior criminal record.

[44]         He has a supportive family and is gainfully employed.

[45]         He has complied with strict house arrest bail conditions for well over two years without any incident.

[46]         He attended for psychological counselling while on bail and was generally cooperative with the preparation of the presentence report and psychiatric report of Dr. MacDonald. It is to be noted that there were some concerns expressed about how forthright he was about his proclivities.

Conclusion

[47]         Ultimately, in balancing all of the relevant principles and factors, I concluded that substantial weight ought to be given to the fact that this twenty nine-year old man has no prior record and spent over two years on strict house arrest without any incident. That type of curtailment of one's liberty for such an extended period of time sufficiently denounces his conduct and can be expected to deter him from re-offending.   I also took into account two days of pre-sentence custody following Mr. Mizra's arrest.

[48]         Any residual concerns about the likelihood of recidivism can be appropriately addressed through the terms and duration of a probation order which will address any public safety concerns in a more meaningful way. The process of assessment for deviant sexual behaviours can begin right away and that risk, if it is found to exist, can be properly assessed and perhaps treated, if the defendant is willing. At a minimum, he is required to attend for appropriate counselling and to provide proof of participation and compliance in any such program.

[49]         Given the legitimate but, as yet unsubstantiated concerns, the Crown expressed about any possible sexual motive underlying the offences, the maximum period of probation is not inappropriate. That way Mr. Mirza will be under the court's supervision for a total of  in excess of five years.