R. v. T., 2005 CarswellOnt 3414

Her Majesty the Queen against K.T.

Ontario Superior Court of Justice

Thomas J.

Heard: June 30, 2005
Judgment: June 30, 2005
Docket: None given.

Counsel: B. McGuire, for Crown
G. Clark, for Defendant

Thomas J.:

1   The Criminal Code provides that the fundamental purpose of sentencing is to contribute, along with crime prevention initiatives, to respect for the law and the maintenance of a just, peaceful and safe society by imposing just sanctions that have one or more of the following objectives:

(a) to denounce criminal conduct;

(b) to deter the offender and other persons from committing offences;

(c) to separate offenders from society where necessary;

(d) to assist in rehabilitating offenders;

(e) to provide reparations for harm done to victims or to the community; and

(f) to promote a sense of responsibility in offenders and acknowledgement of the harm done to victims and to the community.

2   That provision is found in section 718 of the Criminal Code.

3   In this particular case, the principles which need to be addressed are the overriding principle of protection of society and the factors that must be given weight are general deterrence, specific deterrence, denunciation and rehabilitation.

4   K.T. was 19 years of age at the time that he participated in the armed robbery of the Toronto-Dominion Bank, Sandalwood Parkway, on January 11th, 1999. He was a fugitive until police made an arrest on March 11, 2003. Police received certain information through Crime Stoppers that was followed up and eventually a wire tap order was obtained. In a subsequent interception, in essence, the defendant T. admitted to two women, who were close to him, his involvement in the robbery. Comments were made by the defendant which were highly incriminating.

5   His defence was he was not the fourth man involved in the robbery. He said he never entered the bank, he was forced to act as an unwilling driver of the getaway vehicle after the robbery and that he remained in the vehicle at all times. His position was that he went to the scene unwillingly, remained in the stolen van and departed the scene and, for some unexplained reason, he in fact did not begin driving the vehicle. There is some indication he took over at a later stage and followed instructions from one of his confederates. He told police he never was a willing participant in this robbery and he never entered the bank.

6   The jury’s verdict is clear. The jury rejected the defence position which, of course, was contained in the statement he gave to police, following his arrest, at a very late time in the lengthy interview. The jury did not believe what he told Inspector Devolin.

7   There is no evidence that K.T. knew the violence his confederates would resort to during this robbery. The robbery was violent from the outset. One of the robbers, probably Marlon Rowe, grabbed Manjinder Sihota, who had a desk near the front door of the bank, and dragged her by the hair to the vault. Female employees were assaulted, pistol-whipped and treated with unimaginable violence and threats. During this reign of terror, Marlon Rowe shot Nancy Kidd in the back and she died from the fatal shot. There is no direct evidence that the defendant T. knew that any person had been shot during the robbery. Although at the beginning he was roaming about the northern area of the bank on the south side and on the customers’ side of the counters, when persons began coming to the door he confined himself to the front door, admitting persons into the bank and preventing them from leaving. He was masked and carried a handgun.

8   He was charged with manslaughter. The Crown made a decision it did not have evidence to demonstrate he knew that murder was a probable consequence of carrying out the robbery. Although it is not proven beyond a reasonable doubt, it is quite likely that the revolver or handgun Mr. T. carried was loaded. It was a nine millimetre semiautomatic and there is some evidence before the Court that he told his then-wife that the night before the robbery the men cleaned the weapons.

9   The accused came to Canada as a young man and apparently worked only at labour jobs. He has been in custody since his arrest on March 11th, 2003. He has apparently taken some education courses. He clearly became involved in crime within seven months of his arrival. There were indications in the immigration documents that his mother sponsored him and that he was planning to attend school to enhance his education. That never happened. He has been convicted of criminal offences after this crime, including offences of violence, uttering threats, assaults and assault with a weapon. He has also been convicted of breach of recognizance and failing to attend in court. These convictions are not taken into account by me for the purpose of sentencing since they occurred after the bank robbery and homicide at the Toronto-Dominion Bank, but they do show that he has a propensity for violence and a disrespect for the law and the Courts.

10   General deterrence, denunciation, specific deterrence and rehabilitation must each be addressed. I am dealing with a young man who still has many years left in his life. He arranged for his young son to be brought to Canada and he received some considerable help from Cathy Gatto who did most of the correspondence with immigration officials. He also has, at a very young age, fathered two other children I have not heard much about. Apparently he acknowledges he has obligations to those children, but what efforts he has made at any time to support them are unknown to me totally.

11   The Crown is seeking a sentence of 15 years imprisonment. The defence acknowledges that the case law supports a range of some 10 to 12 years. A sentence must not be imposed that crushes the defendant’s prospects of rehabilitation and leaves him without any hope whatsoever.

12   Marlon Rowe was convicted of first degree murder and he is serving a sentence of life imprisonment without eligibility for parole for 25 years. Dain Campbell pleaded guilty to second degree murder and he was sentenced, on consent of the Crown, to life imprisonment with no eligibility for parole for ten years. Dwain Lawes was initially charged with first degree murder. I took first degree murder away from the jury and the trial continued on second degree murder. The jury found him guilty and he was sentenced to life imprisonment without eligibility for parole for 17 years.

13   K.T. found himself involved in what turned out to be a horrific crime, the savage murder of an innocent woman, mother, wife, loyal to her family and to her employer and to her community. Mr. T. has expressed his sorrow to the family and the document he read from, a copy of which I was given, is filed as an exhibit.

14   I repeat that there is no evidence that he knew or appreciated the violence that would accompany the robbery. Many robberies take place at banks throughout the G.T.A. and very often those bank robberies do not even get reported in the print or broadcast media. The bank robberies are often uneventful, but not this robbery on January 11th, 1999. It was violent from the opening bell and the violence continued. The robbery lasted some five and one-half minutes before the four robbers departed in the van, leaving Nancy Kidd dying on the floor outside the vault. K.T. would have learned later, and in fact did learn later at Ms. T.’s apartment, that Rowe had shot a female bank employee. There is no convincing evidence he knew that anyone had been shot prior to learning of the tragedy when they were in the van or after they arrived at Ms. T.’s apartment on Kipling Avenue.

15   A sentence must not only address rehabilitation, but it must also express society’s denunciation for this robbery and the unlawful killing of Nancy Kidd. There must be general deterrence and specific deterrence.

16   In all of the circumstances, I am satisfied that an appropriate sentence in this case is 13 years imprisonment. I will give the defendant credit for four and one-half years pre-trial custody. Accordingly, he will be sentenced to 13 years less four and one-half years for pre-trial custody on a two-for-one basis and, commencing today, he will be serving a sentence of eight and one-half years imprisonment. There will also be a section 110 order for life, and an order preventing him from being in possession of any firearm, ammunition or explosive for life. He is already a member of the D.N.A. data bank, so there is no need to make that order today.

17   Please remove the defendant from the courtroom.

18   Before leaving this case, I wish to express my appreciation, as I did at the end of the trial, to both Mr. Clark and Mr. McGuire for their cooperation throughout this. Two professional counsel, with quite different roles, performed their tasks well and not only did I benefit from it, but the administration of justice did, as well.

19   I would also like to say briefly that the citizens of Brampton owe a great deal to the brilliant police work of the Peel Regional Police under the direction of Inspector Robert Devolin. I doubt in my 40 plus year career if I have seen a case that was any better investigated right from the time when Peel Police on that horrible night of January 14th, 1999 trudged their way through deep, deep snow to the residence of Justice Langdon to obtain a wiretap order. The work that followed with placing cameras in the walls of Ryall Carty’s herbal store and eventual obtaining what amounted to a confession from Marlon Rowe that he caused Nancy Kidd’s death, but accidentally; the subsequent pursuit of Dwain Lawes and the eventual arrest of K.T., obtaining the wire tap order and the press conference; throughout, there was a dedication and commitment to this case that probably has not been equalled, certainly in my experience. Robert Devolin’s dedication to this case and to the Kidd family is not only remarkable, but it is something worth the entire community’s admiration and respect. It has been my pleasure to conduct these difficult trials because I was dealing with a police officer and his associates who conducted themselves with dignity and respect, commitment and professionalism and that was also evident from the way in which the cases were prosecuted by Steve Sherriff and later by Brian McGuire. As I say, I am indebted to all those persons who served their community so well and with so much intensity and fairness that at times, I must admit, I was in awe of the calibre of the work done in this case.