) Mr. S. Sass ) for the Crown HER MAJESTY THE QUEEN ) ) Ms. L. Van Dongen - v. -, 2013 MBPC 60

R. v. Catcheway , 2013 MBPC 60 THE PROVINCIAL COURT OF MANITOBA BETWEEN: ) Mr. S. Sass ) for the Crown HER MAJESTY THE QUEEN ) ) Ms. L. Van Dongen - and - ) for the Accused ) DARRELL JOSEPH CATCHEWAY, ) ) Sentence delivered Accused. ) August 14, 2013 _____ C. DEVINE, P.J. (Orally) Darrell Joseph Catcheway was convicted after trial of several offences that arose from breaking into a house and assaulting the occupants on July 22nd, 2012. The specific offences are as follows: • housebreak, enter and assault pursuant to Section 348(1)(b); • assault with a weapon times two,

Section 267(a); • unauthorized possession of a prohibited weapon, Section 91(2); • possession of a weapon for a dangerous purpose,

Section 88; and • theft under,

Section 344(b). The Crown proceeded by way of indictment. The sentencing of Darrell Catcheway for these offences raises several issues: • How to protect the public from a man who has committed break-ins since 2002, 11 in all, most recently into people's homes. • How to deter him from doing this again. • What role, if any, does the objective of rehabilitation play for Mr.

Catcheway. • How to analyze whether his moral culpability was reduced by some of the background factors that brought him before the court as a young aboriginal man? • What weight is to be placed on the fact that he was in shock and severely intoxicated when he committed these crimes? • How do the circumstances of these offences compare to the traditional home invasion robberies where the guideline for sentencing is seven to ten years? As Justice Steel stated in McCowan , 2010 MBCA 45 : "Determining sentence is one of the hardest jobs that judges have.

Sections 718 to 718.2 of the Criminal Code set out a list of sentencing objectives that the judge must take into account within the matrix of the individual facts of a case. This exercise is...a delicate balancing act ..." (at para. 1)

The Crown characterized the offence as a home invasion or a serious break and enter with assault, that, because of the accused's lengthy record of break and enters, should net a penitentiary sentence of seven years. The defence did not disagree that the offence was serious. She described it more as an assault with the break and enter being an aggravating feature, than a break and enter with the assault being aggravating, given the unique facts in this case. The defence describes not only significant Gladue , Ipeelee factors that should operate to reduce Mr.

Catcheway's sentence, but also the severely shocked state he was in at the time he committed the offence, which would diminish his moral blameworthiness. The defence is seeking a sentence of three years. Both counsel agreed that the time Mr. Catcheway has been in custody can be subtracted from his sentence. He has been in custody for 388 days on today's date or one year and 23 days. The facts. Mr. Reyas and Mr. Baromio were planning to take their respective children bike riding on Saturday morning, July 22nd, 2012. Mr. Reyas had gone to Mr.

Baromio's place to pick him up and then they were going to pick up the children. The morning did not turn out how they had planned. At around 9:00 a.m., Mr. Baromio opened the back door and saw the offender stealing a DVD player from Mr. Reyas' truck which was parked there. When Mr. Catcheway noticed that he was being observed, rather than flee, he advanced on the house, holding a can of bear spray. Mr. Baromio slammed the door and locked it. The offender banged and kicked at the door until he was able to break it and get in. The victims did not know if he was alone or with what he may be armed.

The victims ran upstairs to a bedroom and closed and locked that door, Mr. Baromio arming himself with a sword. The offender followed the victims up the stairs and banged and kicked at the locked bedroom door. He was able to push it open and spray bear spray at the victims. Mr. Baromio was sprayed directly in the face. He was then blindly swinging the sword. Reyas screamed at him to break the bedroom window with the sword so they could escape. Baromio broke the window and the two jumped out of the building, injuring themselves on the broken glass. Issue.

The issue is what is a fit and appropriate sentence that is proportional to the seriousness of the offence and Mr. Catcheway's degree of responsibility. The relevant objectives of sentencing in this case are: Denunciation, general deterrence, specific deterrence. Specific deterrence is a paramount concern in this case. Mr. Catcheway's previous convictions and deterrent sentences have not deterred him. It is open to me to use the offender's record to find that past attempts to deter him have been unsuccessful and that there is a need to protect society from him. ( R. v.

Reader , 2008 MBCA 42 at para. 20 ) Separation of the offender from society. The Crown emphasized that protection of the public is a paramount concern. Rehabilitation. The Crown says that rehabilitation takes a back seat to specific deterrence and protection of the public, however, Mr. Catcheway is only 23 years of age. His rehabilitation is in the best interests of society. Proportionality is the overarching principle involved in sentencing. A sentence must be proportionate to the seriousness of the offence and the degree of responsibility of the offender.

With respect to the seriousness of the offence, this started as a bold but drunken theft of a DVD player in broad daylight from a truck, likely to be sold to buy drugs or alcohol. But it turned into a break and enter and assault when the offender saw that he had been observed. The only reason that is apparent for the break-in was to harm the occupants. Mr. Catcheway did not take anything from the house. But he in fact terrorized and terrified the victims. When Mr. Baromio closed and locked the door, that should have been enough to deter Mr. Catcheway from entering the home or having anything to do with Mr.

Reyas and Mr. Baromio. Mr. Reyas and Mr. Baromio should have felt safe and been safe at that point. For no reason, other than apparently to cause harm to the victims, Mr. Catcheway broke in. He then followed the two men upstairs where they had fled and hidden in a bedroom. He kicked and pushed on that door until he got it partially opened and then he bear sprayed at the victims. Both the victims were affected by the spray. When they fled out the window, putting them at the front of the building, Mr. Catcheway went through the front door. Mr.

Reyas saw him exiting the front door of the building after he landed on the ground in front. This was a serious, frightening event. The victims were terrified and escaped by jumping from a second storey window. Mr. Reyas suffered significant injuries making his escape, cutting three ligaments on this left forearm. After Mr. Reyas got in his truck and saw the offender on Sherbrook Street, the offender made taunting gestures towards him. Although this break-in lacked planning, Mr. Catcheway was armed with bear spray and was intent on theft.

At the very least, it appears he was arming himself to assist in the commission of theft. One of the most basic human needs is to have a safe and secure home. When a door is closed, the occupants wish privacy. When a door is locked, the occupants wish to guarantee their privacy, security and safety. Mr. Catcheway violated in a most frightening manner that most basic human need and right to be secure in one's home. This is an extremely serious offence. It is aggravating on sentencing a break and enter that the offender knows the dwelling house is occupied and uses violence towards the occupants.

Section 348.1 characterizes this type of break and enter as a home invasion.

What was Mr. Catcheway's degree of culpability or responsibility for this offence? It was not a planned home invasion and assault. It is distinguishable from the home invasion robbery and home invasion assault cases provided and referred to. The facts of this home invasion distinguish it from cold-blooded planned home invasion robberies with elements of torture like that of Reader , 2008 MBCA 42 . In that case, the two co-accused executed two well planned violent, terrifying home invasions. They targeted semi-rural homes in bedroom communities, posing as young men needing assistance.

They then hog-tied and gagged their victims and proceeded to loot the homes. In the first home invasion after hog-tying the victim, they put him in the basement so others could not hear his cries for help. In the second home invasion the next day, they separately confronted and hog-tied two boys in their home. They placed the boys on the basement floor, then proceeded to steal items throughout the house. They pointed the guns in the boys' faces and pulled the trigger, laughing about it. The boys thought they were going to die.

The co-accused received nine and a half years for both home invasions and Reader received 15 years on those two home invasion robberies. The facts in this case are also distinct from the home invasion assault cases of McCowan 2010 MBCA 45 , and Pakoo , 2004 MBCA 157 , which were both cases of planned break-ins with the intention to assault the known victims. The circumstances in which Mr. Catcheway committed these offences are also distinguishable. About four hours before he broke in to Mr.

Reyas' truck, he and his common-law partner received a call that his partner's sister, effectively his sister-in-law, had just been stabbed and that they should come. When they arrived, the sister-in-law was in the ambulance. Mr. Catcheway and his partner got into the ambulance as EMS workers were trying to save her life. They could not resuscitate her. Mr. Catcheway witnessed her dying of the stab wound. She became the city's 19th homicide victim. The next thing Mr. Catcheway remembers is being in a police cell, having been arrested for a crime that to this day he has no memory of.

He was in what I would infer was a state of shock and extreme intoxication. He has no recollection of the event and the offences. His state of intoxication was noted by the witnesses in the trial, both Mr. Reyas and the police officers who arrested him minutes later. His moral blameworthiness or his specific intent to break into Mr. Baromio's house for the purpose of assaulting the victims was thereby diminished by the combination of shock and intoxication. There was also Mr. Catcheway's background as a 23-year-old First Nation's man.

As the Supreme Court directed in Gladue at paragraph 37, I must consider the unique systemic and background factors that have played a

part in bringing Mr. Catcheway before the courts. It is intrinsic to the proportionality analysis fundamental to the law of sentencing. ( Ipeelee at paragraph 87). Mr. Catcheway grew up in Winnipeg in a home where there were 10 children and with parents who drank and partied all the time. At the age of 10, he started drinking and running away as the streets of Winnipeg felt safer than his crowded home where alcohol and parental violence were the norm and survival of the fittest was the operational policy. At the age of 23, he has a significant alcohol addiction. He has a grade 7 education.

In addition to the shocking loss of his sister-in-law on the date of the offence, he has experienced other losses far too familiar to First Nations people, the suicide of a 17-year-old friend a year ago and his father's death due to diabetes. I must also consider Mr. Catcheway's record, however. He has a terrible record and it is related. He has 10 previous convictions for break and enter. This is his 11th. Seven of those convictions were as an adult. On July 5th, 2010, he was convicted of six break and enters and sentenced effectively to 50 months of jail, or just over four years.

To be clear, however, he was not sentenced to four years, but that was his effective sentence. He had spent 20 months in pre-trial custody for which he was credited 40 months and he was sentenced to an additional 10 months of jail. Just as he finished that custodial sentence, Mr. Catcheway committed another break and enter into a dwelling house on March 15th, 2011. He was convicted of that offence on October 31st, 2011. He received a sentence of 19 and a half months. Again, his pre-trial custody was counted as part of his sentence.

He had seven and a half months of pre-trial custody and was sentenced to a further 12 months in jail. Mr. Catcheway has several other related convictions, two for possession of break-in instruments, seven for possess goods obtained by crime under $5,000, one for possess goods obtained by crime over $5,000, two for theft under, two for theft over, three assaults or assault with weapon, and weapons charges. His lawyer said the break and enters were to support his addictions. The theft of a DVD player from a truck in broad daylight is consistent with that motive, particularly following on the tragic loss of life Mr.

Catcheway had just witnessed. It appears that break and enters are a way of life for this offender, so entrenched in his psyche that it is his default activity when in shock and intoxicated to the point of having no memory of the offence. In addition to the objectives of sentencing and the overarching principle of proportionality, there are other sentencing principles that I have considered, including parity. The Crown provided the cases of Reader and McCowan to which I have already referred. They are not comparable sentencing decisions.

Reader , as I stated earlier, was a case involving serious home invasion robberies for which the guideline is seven to ten years. McCowan was not a traditional home invasion, rather a retaliatory attack after a break and enter, as was Pakoo , sometimes referred to as setting the guideline for non-traditional home invasions at seven to ten years. In McCowan , the offender and his wife had been crack cocaine addicts. He cleaned up; she did not. She started living with her dealer, leaving Mr. McCowan and their children.

One day the offender climbed the apartment building and got on to the balcony of the apartment where his ex-wife and the crack dealer were living. The crack dealer warned him to go away or the police would be called. A few nights later the offender scaled the wall again, broke in, caught the two in bed and savagely beat the victim. The victim suffered a fractured jaw, laceration of the scalp, extensive facial trauma and brain injury. He was permanently disabled by the attack.

The offender had spent 33 months in pre-sentence custody for which he was credited to five and a half years, which was followed by three years of probation. Mr. McCowan had a dated record with an assault from 1993 and some unrelated convictions. He also had a very positive pre-sentence report and letters of support and recommendation, including a very positive letter from the chaplain at Headingley Correctional Centre.

Pakoo was also a rage and jealousy-fuelled break-in and attack by a man on his ex-wife's new partner. He went to the home of hisex-wife and new partner, firing a rifle into the home. Children inside the home were almost hit. He pointed the rifle at his ex-wife andnew partner and tried to fire the gun again but it jammed. His sentence was increased from four years to five years, eight and a halfmonths. The Court of Appeal in Pakoo said that seven to ten years is the appropriate range for serious home invasions and on the factsof Pakoo that range was similarly suitable.

In the Manitoba Court of Appeal case of Hill (2000), (MB CA), 142 Man.R. (2d) 314, referred to in McCowan,the offender broke into the apartment, beat and castrated the victim, stabbed his common-law partner and then abducted and confinedher. The sentence was eight years. In Sinclair, 2009 MBCA 91, the offender broke into an apartment with a group of people and was armed with a board with nails atthe end of it. He was sentenced to 11 years. The Crown relied heavily on the range of seven to ten years set for home invasion robberies in cases like Pakoo and McCowanwhich I will call home invasion assaults.

Indeed, in Pakoo Justice Freedman stated that although it was not a home invasion robbery thecircumstances were so serious that, "... if seven to ten years is the realistic range for a serious home invasion robbery, I can see no logical reason why that should not also bea suitable range for the collection of serious offences before us here." (at para. 42) But as Justice Steel emphasized in McCowan at paragraph 16, Justice Freedman also warned that this was not a rigid frameworkthat displaces the delicate balancing work in determining proportionality.

Likewise, in his concurring judgment in Pakoo, Justice Kroftwarned of the danger of attaching labels to vaguely similar kinds of offences and applying fixed and limited ranges of sentences to them,at paragraph 16. The sentences in Pakoo and McCowan were below the seven to ten year range, as I indicated earlier.

As Justice Scott stated inTurtle, "... not every break and enter is a home invasion and not every break and enter in which s. 348.1 is applicable as an aggravating factorshould attract a sentence in the range of seven to ten years." (cited in McCowan at para. 18) The Court of Appeal reiterated in L.L.D.G., 2012 MBCA 106, that is an error to too quickly analogize all housebreak commitoffences as serious home invasions or home invasion robberies, at paragraphs 37 to 40.

In that case, the offender was sentenced to a ten-year term of imprisonment for a break and enter and commit sexual assault on a sleeping woman which her seven and ten-year-oldchildren witnessed. The Court of Appeal substituted a sentence of five years. Justice Monnin stated that the trial judge erred in findingthat the circumstances of the offences were analogous to a home invasion robbery that would attract a Pakoo sentence of seven to tenyears, even though the offence met the definition of home invasion in

Section 348.1 of the Criminal Code, at paragraph 40. One sizedoes not fit all home invasions, that is from J.S., 2006 ONCA, cited in McCowan at paragraph

Section 348.1 applies, but the seven to 10 year sentence guideline does not in this case, on the basis of the circumstances of theoffence, the lack of planning, and the diminished moral blameworthiness of the offender. With respect to aggravating and mitigating factors, as I indicated earlier,

Section 348.1 of the Criminal Code deems a housebreakand enter aggravating on sentencing where the offender knows that the owner is inside and he commits or threatens to commit a violentact. As Justice Steel stated in McCowan, "A person's home is their refuge, and Parliament has emphasized by this

section that attacks inside a citizen's supposed place of securityrequires special denunciation." (para. 8) With respect to mitigating factors, I do not find there are mitigating factors in this case. Sentence. Although the requirements of considering the background of aboriginal offenders were imposed by the Supreme Courtand Parliament in an attempt to eliminate the over-incarceration of aboriginal offenders, there are those cases where the seriousness ofthe offence still demands a period of incarceration. This is one of those cases.

The sentence I impose must give expression to the relevant sentencing objectives of general and specific deterrence anddenunciation as well as rehabilitation, given Mr. Catcheway's age. In L.L.D.G. the sentence was reduced from 10 years to five years because the sentencing judge had not considered therehabilitation of a still young offender, even though he had a very bad record and past attempts to rehabilitate him had failed. I must also, however, looking at Mr. Catcheway's record and seeing that past attempts to deter him have been unsuccessful, protectsociety from him.

This case underscores the delicate balancing required where there are real concerns about deterring Mr. Catcheway and protecting the public and at the same time recognizing that his moral culpability is affected by his background, his addiction and his state of shock and intoxication that day. These offences were serious. It is aggravating that Mr. Catcheway chased the victims into the house and broke down doors to get at them. They were chased down and they were terrified. They jumped from a second storey window to save their own lives, Mr. Reyas suffering a serious injury as a result.

I find this offence to be serious, but I distinguish it from the almost sadistic violence in the cases presented to me. As well, the planning was non-existent. That alone takes these offences out of the seven to ten year range. There is also the attenuated moral culpability of Mr. Catcheway, not only by reason of the Gladue , Ipeelee factors which I outlined earlier in this decision, but also because of his state of extreme shock and intoxication that morning. He had just seen his sister-in-law die as a victim of murder. He then drank to the point of intoxication.

I must also consider that the long-term protection of society requires that Mr. Catcheway be rehabilitated. The sentence, therefore, must not be so crushing to a 23-year-old that all prospects of rehabilitation upon his release will be extinguished. Mr. Catcheway is young and his aboriginal background places him in a distinctive place. It is an error of law not to consider Gladue , Ipeelee factors in sentencing, as it is to ignore prospects for rehabilitation of youthful aboriginal offenders. In looking at the sentences Mr.

Catcheway has served for similar offences in the past, I observe that this will be his first penitentiary sentence. It may be that there will be some deterrent effect to serving a sentence in a federal penitentiary rather than in a provincial jail or remand centre. As well, there may be better prospects for rehabilitation in a federal institution where the length of the sentence alone allows for further consistency and rehabilitation. The sentence will be as follows: On the housebreak, enter and assault, there will be a sentence of four years.

All other sentences will be concurrent to that sentence as follows: The sentence on each of the assaults with weapon will be six months concurrent to each other. The sentence for possess weapon for a dangerous purpose and unauthorized possession of a prohibited weapon, to wit the bear spray, will be four months concurrent. The theft under of the DVD player will be four months concurrent. The total sentence will therefore be four years. Subtracted from that will be the 388 days or one year and 23 days that Mr. Catcheway has already been in custody. I am making the

Section 109 mandatory weapons prohibition for a period of 10 years on the housebreak, enter and assault conviction and sentence. There will be a DNA order as the housebreak enter and assault is a DNA primary designated offence. There will be forfeiture of the bear spray and I will waive costs and surcharge. Are there any questions? MS. VAN DONGEN: No, thank you, Your Honour. MR. SASS: No, Your Honour. Thank you. THE COURT: Thank you, counsel. _____