R. v. Wozny, 2010 ABQB 803

Court of Queen’s Bench of Alberta Citation: R. v. Wozny, 2010 ABQB 803 Date: 20101214 Docket: 081103962Q3 Registry: Calgary Between: Her Majesty the Queen - and - Michael James Wozny Accused _______________________________________________________ Sentencing Decision of the Honourable Madam Justice E.A. Hughes _______________________________________________________ [1] I found Mr. Wozny guilty of manslaughter of Mr. Bowser and the break and enter of Mr. Bowser’s home with intent tocommit an indictable offence. See R. v. Vuozzo, 2010 ABQB 439. [2] The Crown submits a fit sentence for Mr.

Wozny is in the range of 12 to 15 years for both offences. It is based on theCrown’s submission this was a home invasion robbery, the case authorities provided, and no doubt, the sentence I imposed upon Mr.Vuozzo for the break and enter. Counsel for Mr. Wozny submits the range is 6 to 8 years, relying on R. v. Varga, 2000 ABCA 72, R. v.Peers, 2006 BCSC 1971 and R. v. Crossley, 2005 BCSC 1297, as well the defence submission Mr. Wozny did not commit a homeinvasion robbery as defined by the Court of Appeal in R. v. Matwiy (1996), 1996 ABCA 63 , 178 A.R. 356 (C.A.).

[ 3 ] I have inferred from counsel’s submissions that the sentence I impose should be the same for both offences and one concurrent with the other. I agree with counsel in light of the facts of this case. [ 4 ] The issues I must address in this hearing are: 1. The relevant sentencing principles; 2. On the facts I found with respect to Mr. Wozny, did he commit a home invasion robbery as defined by R. v. Matwiy ; 3. What is a fit sentence to impose on Mr. Wozny for the manslaughter of Mr. Bowser and the break and enter of Mr. Bowser’s home; [ 5 ]

Part XXIII of the Criminal Code of Canada sets out the purpose and principles of sentencing. R. v. Arcand , 2010 ABCA 363 reviewed these sentencing principles, that were enacted in the 1996 sentencing reforms of Parliament, and observed: 1. The principle of proportionality is the governing sentencing principle. This principle is fundamental to the integrity of the sentencing regime that Parliament has prescribed: at para. 47. 2. The two components of proportionality are the gravity of the offence and the degree of responsibility of the offender. 3. The objectives of sentencing in s. 718.2 of the Code are all “... either components of the proportionality principle or properly influence its

interpretation and application. Either way, all are relevant in determining a just sanction that satisfies the proportionality principle.” at para. 59. 4. “The parity principle in s. 718.2(

b) impacts squarely on the degree of responsibility of the offender generally prescribing, as it does, that a sentence should be similar to those imposed on similar offenders for similar offences committed in similar circumstances. More fundamentally, as noted, parity constitutes a indispensable element of the proportionality principle. Therefore, to diminish or ignore the importance of parity in sentencing is to effectively undercut the proportionality principle mandated by Parliament” at para. 61. 5. While sentencing is an individualized process, the process is not exclusively about the offender.

A sentencing judge must not overlook that crimes are wrongs to both individuals and the community. [ 6 ] Any sentence I impose must meet the principle of proportionality. [ 7 ] R. v. Matwiy at para. 31 identified the “... basic, essential features of a home invasion robbery ... as a mature individual with no prior record, [who:] (

a) plans to commit a home invasion robbery (although the plan may be unsophisticated), and targets a dwelling with intent to steal money or property, which he or she expects is to be found in that dwelling or in some other location under the control of the occupants or any of them; (

b) arms himself or herself with an offensive weapon;

(

c) enters a dwelling, which he or she knows or would reasonably expect is occupied, either by breaking into the dwelling or by otherwise forcing his or her way into the dwelling; (

d) confines the occupant or occupants of the dwelling, even for short periods of time; (

e) while armed with an offensive weapon, threatens the occupants with death or bodily harm; and (

f) steals or attempts to steal money or other valuable property.” [ 8 ] I found Mr. Vuozzo decided to break and enter Mr. Bowser’s home and steal his marijuana based on information he obtained from Christine Hume, Mr. Bowser’s step daughter, Christine’s friend Ruby and his friend, James Stewart. Mr. Vuozzo asked Mr. Wozny if he wished to take

part in this “rip off”; Mr. Wozny agreed to participate because he owed at least $500 at this time and he believed there was “a substantial amount of weed and maybe some money” at the residence. He also knew “buddy might or might not be home”. [ 9 ] Mr. Vuozzo and Mr. Wozny borrowed a car to drive to the area of the Bowser residence. Mr. Wozny, the driver of the car, parked the car up the street from the Bowser residence; he placed the keys on the floor of the car and left the car parked and unlocked when the two men left the car to go to the Bowser residence. As Mr.

Wozny explained to Detective Wozney: Michael Wozny: Just ‘cause I ... we were going to do a score, right? I didn’t ... I was thinkin’ ... trying to think ahead of time. Detective Wozney: Yeah. Michael Wozny: Right, like if, if we were robbing buddy and all of a sudden, you know, we got caught for robbing this guy. I don’t want to have buddy’s keys in my pocket so he can’t get his car or nothing. Detective Wozney: Mm-hmm. Michael Wozny: Right, so I just left them on the floor. Detective Wozney: Okay. Michael Wozny: So it was not, it was not planning for a fast getaway or nothing like that.

It was, it was more thinking if I got arrested. [ 10 ] Both Mr. Vuozzo and Mr. Wozny wore their hoodies on their heads in an attempt to conceal their identities when they entered the residence. Mr. Vuozzo also tied a T-shirt around the lower part of his face. [ 11 ] Mr. Vuozzo entered the residence first, followed by Mr. Wozny, and they saw Mr. Bowser sitting in his living room. Mr. Bowser got up, and he and Mr. Vuozzo began to struggle in the living room area while Mr. Wozny stood in the door area. This struggle between Mr. Bowser and Mr. Vuozzo moved towards the front door, and Mr.

Wozny left the residence after he saw Mr. Vuozzo stab Mr. Bowser in the back. [ 12 ] Mr. Wozny ran to the car and got in. Mr. Vuozzo followed some short period of time later. His clothes were covered in blood and he was missing one of his shoes, which got caught at the door of the Bowser residence as he ran from the house. Mr. Vuozzo also left the machete he used to stab Mr. Bowser in the residence.

[ 13 ] The two men did not take any marijuana or money during this break and enter. [ 14 ] After Mr. Vuozzo and Mr. Wozny made their escape, they stopped at a dumpster, where both men threw clothing into the dumpster, and the two men returned to the home they were staying. Mr. Vuozzo and Mr. Wozny went their separate ways the following day. [ 15 ] I also found the Crown did not establish beyond a reasonable doubt that Mr. Wozny knew Mr. Vuozzo brought the machete with him. [ 16 ] Based on the facts I found Mr. Wozny, in conjunction with Mr. Vuozzo, targeted Mr.

Bowser’s home with intent to steal marijuana and money that was present in the home. The two men entered the home that Mr. Wozny knew might be occupied and immediately saw Mr. Bowser. Rather than leave, Mr. Vuozzo attempted to confine Mr. Bowser by physically overpowering him and attacking Mr. Bowser with a machete. It was during this struggle that Mr. Vuozzo stabbed Mr. Bowser. Throughout the struggle, Mr. Wozny remained inside the house at the front door. [ 17 ] The only essential feature of a home invasion robbery I did not find with respect to Mr. Wozny was that he knew Mr.

Vuozzo had armed himself with the machete before the two men entered the Bowser residence. [ 18 ] I will assume, without deciding, that Mr. Wozny’s knowledge of Mr. Vuozzo arming himself with the weapon must be established to apply the guideline range of sentence set out in Matwiy . However, as Mr.

Wozny’s participation in the break and enter falls so closely to that of a home invasion robbery as defined in Matwiy , I find many of the principles articulated in Matwiy to be relevant to my determination of a fit sentence in this case. [ 19 ] For example, the Matwiy court identified the actual use of force to an occupant, the causing of injuries to an occupant, acting in concert and a prior record for violent offences to be aggravating factors.

All of those factors are present in this case and in my view are aggravating factors. [ 20 ] Further, the Matwiy court observed that deterrence - both general and specific - and denunciation are the primary sentencing principles in crafting a fit sentence for a home invasion robbery. On the facts before me, I consider these sentencing principles to be the important sentencing principles in crafting a fit sentence. [ 21 ] In R. v. Arcand , the court as I stated above, identified proportionality as the most important sentencing principle.

This principle requires that a sentence for a crime be proportionate in its severity to the seriousness of the crime committed and is measured by the gravity of the offence and the offender’s degree of responsibility. [ 22 ] I have already identified the other important sentencing principles I must apply in imposing a sentence in this case - those principles are deterrence and denunciation. [ 23 ] I find the break and enter committed by Mr. Wozny to be a most serious offence for the following reasons: 1.

The maximum punishment for a break and enter of a dwelling house, prescribed by Parliament is life imprisonment. 2. Courts have always considered the breaking and entering of homes as a serious matter. We, as a society expect that we may be safe and secure in our own homes.

3. The targeting of this house was well planned in that Mr. Vuozzo knew there was marijuana present. Further, both men wore hoodies to avoid detection. 4. The most serious offence occurred during the commission of this break and enter that being the death of Mr. Bowser. [ 24 ] I next turn to consider Mr. Wozny’s background and degree of responsibility. [ 25 ] Mr. Wozny was born on October 25, 1984 and was 23 years old at the time of these offences. I characterize Mr. Wozny as an individual who was neither a youthful nor a mature offender at the time but, one in between.

For a young man, he has accumulated a lengthy and unenviable record. By the time Mr. Wozny had committed these offences, he had accumulated 50 criminal convictions as a youth and an adult. Of these, 4 are convictions for violence and weapons offences. [ 26 ] Subsequent to the break and enter and death of Mr. Bowser, Mr. Wozny was convicted of other offences including uttering threats and resisting arrest. [ 27 ] Mr. Wozny’s background is fully explored in the Pre-Sentence Report and the Southern Alberta Forensic Psychiatric Report. Relevant information from those reports includes: 1. Mr.

Wozny accepts responsibility for his actions and has expressed remorse. This is consistent with his statement to the Court. 2. Mr. Wozny continues to have the support of his family and girlfriend. 3. Mr. Wozny meets the criteria for alcohol and cannabis dependency. 4. His assessment supports a diagnosis of a conduct disorder that gradually evolved into a anti-social personality structure. 5. Mr. Wozny has a clinical presentation and previous history in keeping with attention deficit/hyperactivity disorder. 6. Mr.

Wozny is of average general intellectual abilities and potential compared to peers of a similar age. 7. “Inherent in his personality attributes, Mr. Wozny tried to use this forensic assessment to obtain a more lenient sentence by arguing that his substance abuse difficulties had become a problem only after he committed the index offense as he was troubled by guilt and remorse. Unfortunately for Mr.

Wozny, his previous psychiatric assessments clearly indicated that his serious problems with drugs and alcohol preceded his index offence.” at page 16. 8. “With respect to his risk of recidivism, relative to other forensic clients, risk for general and violent recidivism falls within the very high and moderate category, respectively .... This risk would be particularly salient when Mr. Wozny is influenced by substances and/or negative peers. Further, it appears that Mr. Wozny is impacted by poor self esteem and may be seeking acceptance and affiliation with others.

He appears vulnerable to peer-influence, which may create further problems while incarcerated.” at page 16. 9. The report also noted “... in a more positive note, Mr. Wozny’s history and presentation indicated that he tends to do well in supervised environments and when he removes himself from negative influences. ... With regard to responsivity issues, there was no evidence to suggest that Mr. Wozny was not able to meaningfully participate or benefit from treatment as he responds well to structure and has an average IQ.

However, his repeated failure to maintain his improvement when leaving structured environments or returning to

situations where he may be exposed to peer pressure suggests that he responds to external controls but he is failing to internalize thesecontrols. Mr. Wozny’s failure to internalize controls could be related to many factors but substance abuse, discontinuing medication forADHD and lack of motivation and readiness for treatment are probably significant factors in this respect.” at page 17. [28] Mr. Wozny’s degree of responsibility is different from that of Mr. Vuozzo’s, as Mr. Wozny did not kill Mr. Bowser. [29] In Arcand, the court observed at para. 60: ...

Section 718.2(

a) also permits courts to take into account the relative degree of responsibility amongst parties to a crime. While thecriminal law does not distinguish between the principal offender and parties to an offence in terms of criminal liability, for most crimes,the relative degree of culpability of parties potentially varies widely. Thus, an offender who is the ringleader of a crime may well receivea higher sentence than, for example, an immature follower.

On the other hand, there may be no basis on which to distinguish betweentwo (or more) offenders, especially where the crime is a joint gang attack on a victim. [30] It is also important to note the court’s observations in R. v. Hennessey, 2010 ABCA 274, a recent sentencing case involvingtwo accused convicted of manslaughter, and who were parties to murder, respecting responsibility of parties: 24 Denunciation and deterrence are critical in this case. It is important that the public see that aiding and abetting a grave crime is nota minor offence.

Denunciation educates the public generally with respect to the offender's conduct: R. v. C.A.M., supra (para. 81). 38 Where several people set out to commit agreed crimes, their different physical roles are relevant in sentencing. But sentencingdistinctions between their physical acts should not be the main emphasis: R. v. Nikkel, 2001 BCCA 745, 162 B.C.A.C. 57 (para. 18); cf.R. v. Auclair (2001) (ON CA), 148 O.A.C. 71 (C.A.) (para. 41). Here the sentencing judge appropriately noted whatdifferent roles Hennessey and Cheeseman played. 47 In R. v. Church (1985) 7 Cr. App.

R. (S.) 370, 372, the English Court of Criminal Appeal heard a sentence appeal in a case ofarmed robbery. They quoted with approval from and applied an earlier unreported decision of their court. They said that the passage didnot lay down a general rule, and that had the missing ringleader and planner been caught, a heavier sentence for him would beappropriate. But they found no difference in criminality in Church between the holdup man and the driver of the final getaway car. Thequotation is as follows: ... each of whom in our view without one shadow of doubt played an all important

part in this crime, even though one cannot pinpointprecisely what the part of each was. In our view there is no distinction in a crime of this kind to be drawn between those who actually usethe violence and those who stand outside and though not using violence are ready to drive away, to kidnap, or perform whateverother task may be appropriate.

If this Court or a trial judge is dealing with a case of armed robbery of a bank at gunpoint or with ironbars, or of a security van carrying large quantities of notes to a branch of a bank, it does not normally stop to consider whether aparticular prisoner actually held up the cashier or held up the guard, had a gun or had an iron bar or was the driver standing outsideready to drive away.

All are equally guilty because without each playing his full part the crime could not be perpetrated. (emphasis added) I do not read that as an inflexible rule of law, but rather as a type of reasoning legitimate for a sentencing judge to adopt in a particularcase, including this case. [31] Based upon the principles set out by the Court of Appeal and the facts I have found, I believe this is an appropriate case forMr. Wozny to receive a lessor sentence than Mr.

Vuozzo for their respective roles in the break and enter while still acknowledging theseriousness of this offence. [32] I have made mention of some of aggravating and mitigating factors in this case. The aggravating factors are:

1. Bowser’s death; 2. Wozny acted in concert with Mr. Vuozzo; 3. Mr. Wozny agreed to participate in the break and enter with Mr. Vuozzo knowing Mr. Vuozzo was a person “to do stupid shit and get everybody else into trouble”; 4. The Bowser home was targeted because it contained drugs and money; 5. Mr. Wozny has a record for violent offences albeit they are few in number; 6. Mr. Wozny attempted to use his forensic assessment to obtain a more lenient sentence; 7. Mr. Wozny’s risk for general and violent recidivism falls within the very high and moderate category; and

Section 348.1 of the Criminal Code which provides: 348.1 If a person is convicted of an offence under

section 98 or 98.1, subsection 279(2) or

section 343, 346 or 348 in relation to a dwelling-house, the court imposing the sentence on the person shall consider as an aggravating circumstance the fact that the dwelling-house was occupied at the time of the commission of the offence and that the person, in committing the offence, (

a) knew that or was reckless as to whether the dwelling-house was occupied; and (

b) used violence or threats of violence to a person or property. [1] The mitigating factors are: 1. Mr. Wozny’s age at the time of the offence; 2. Mr. Wozny’s acceptance of responsibility and expressions of remorse; and 3. Mr. Wozny continues to have the support of his family and girlfriend. [2] While Mr. Wozny has accepted responsibility for his actions and expressed remorse, I must not overlook that his crimes are wrongs to the community and that he has harmed Kevin Bowser’s family and friends. As I observed in sentencing Mr. Vuozzo, Mr.

Bowser’s mother, Darlene Bowser; his sister, Rhonda Bowser; and his cousin, Dorinda Ainscough read their Victim Impact Statements to the court. All three described a man who was loved by his parents, siblings, and extended family. To them, he was a loving family member who was an artist, a gardener, and a man with a wonderful wit and sense of humour to list but a few of his qualities. His senseless death has left his family struggling daily to deal with their grief, loss, and anger. Their struggles will not end when I impose sentence but will continue for years to come.

[3] From my review of the cases provided by both Crown and Defence, as well as reviewing some of the cases cited in those cases, I am of the view that the upper sentencing range is higher than the 8 years put forward by counsel for Mr. Wozny. I say this in that, for example, R. v. MacDonald , 2006 BCPC 485 which was relied on in the Peers case, was a sentence of 7 years. That sentence was imposed after a guilty plea. Because a guilty plea is a mitigating factor, it reduces a sentence. [4] Taking into account the fact the break and enter offence, for which Mr.

Wozny has been convicted, is as serious as a home invasion robbery offence in that Mr. Bowser was murdered during its commission, as well as taking into account all the aggravating and mitigating circumstances, I conclude that a fit sentence in this case is 9 ½ years. However, I must credit Mr. Wozny for his pre-trial custody. That pre-trial custody is 28 months for which he will receive a two for one credit. Thus, Mr. Wozny is sentenced to a period of incarceration of 4 years, 10 months.

As I observed earlier, the sentence for manslaughter will be the same sentence and concurrent to the sentence for the break and enter. [5] I also make the following Orders required by Criminal Code ; the mandory DNA Order, a Life-times Weapons Prohibition Order; and I waive the Victim Fine Surcharge as Mr. Wozny has no ability to pay. Heard on the 6 th day of December, 2010. Delivered orally on the 9 th day of December, 2010. Dated at the City of Calgary, Alberta this 14 th day of December, 2010. E.A. Hughes J.C.Q.B.A. Appearances: G. Cornfield, Q.C. For the Crown K. Ramakrishnan For the Crown K.

Beyak For the Accused Wozny