R. v. Samson, 2018 NLSC 198

court crest IN THE SUPREME COURT OF NEWFOUNDLAND AND LABRADOR GENERAL DIVISION Citation : R. v. Samson , 2018 NLSC 198 Date : October 11, 2018 Docket : 201701G7549 Her Majesty The Queen v. Gina Rosemary Penney Michael Samson Before: Justice Donald H. Burrage Place of Hearing: St. John’s, Newfoundland and Labrador Dates of Hearing: June 18, 19, 20, 21, 2018 and September 21, 2018

Summary: The 34-year-old offender, Michael Samson, was sentenced to four years and two months’ imprisonment for robbery conducted during a home invasion, and one-month imprisonment, consecutive, for breach of probation. He was also sentenced to three years’ imprisonment for break and enter and 16 months’ imprisonment for assault with a weapon, to be served concurrently. He entered the victim’s living room armed with a crowbar and left with $2,100 - $2,200 in cash. The offender received a credit of 1.5 days for each day of time served prior to sentencing, to be deducted from the foregoing sentence. Appearances:

Jennifer M. Colford Appearing on behalf of the Crown Mary L. Boulos Appearing on behalf of Michael Samson Authorities Cited: CASES CONSIDERED: R. v. Nasogaluak , 2010 SCC 6 ; R. v. Newhook , 2008 NLCA 28 ; R. v. Lundrigan , 2012 NLCA 43 ; R. v. Cluney , 2013 NLCA 46 ; R. v. Penney , 2018 NLSC 143 ; R. v. O’Keefe , 2007 NLCA 58 ; R. v. Matwiy , 1996 ABCA 63 ; R. v. Kane , 2012 NLCA 53 ; R. v. Manuel , 2010 NLTD(G) 177; R. v. Lewis , 2012 NLCA 11 ; R. v. King (2013), 336 Nfld. & P.E.I.R. 255, 106 W.C.B. (2d) 543 (N.L. (Prov. Ct.)); R. v. Sheppard , 2006 NLTD 48 ; R. v.

Bennett (2014), 347 Nfld. & P.E.I.R. 73 , [2014] N.J. No. 51 (Prov. Ct.) ; R. v. Barry , 2016 NLTD(G) 103; R. v. Canning , 2017 NLTD(G) 8; R. v. J akupaj , 2017 NLTD(G) 120; R. v. Hutchings , 2012 NLCA 2 ; R. v. Mahoney , 2018 NLCA 16 ; R. v. Safarzadeh-Markhali , 2016 SCC 14 ; R. v. Summers , 2014 SCC 26 STATUTES CONSIDERED: Criminal Code , R.S.C. 1985, c. C-46 REASONS FOR JUDGMENT Burrage, J. : INTRODUCTION [ 1 ] On 21 June 2018 Michael Samson was convicted of one count each of robbery, break and enter, assault with a weapon, and breach of probation. [1] As set forth in the Indictment, the charges for which Mr.

Samson was convicted are, as follows: Count 1 On or about the 5th day March 2017 at or near St. John’s, Newfoundland and Labrador, did rob monies and goods from Lawrence Worthman, thereby committing an indictable offence contrary to

section 343 of the Criminal Code . Count 2 On or about the 5th day March 2017 at or near St. John’s, Newfoundland and Labrador, did break and enter a certain place, to wit: the dwelling house of Lawrence Worthman, situated at 437 Thorburn Road, thereby committing an indictable offence contrary to section 348(1) (

b) of the Criminal Code . Count 3 On or about the 5th day March 2017 at or near St. John’s,Newfoundland and Labrador, did unlawfully assault Lawrence Worthman, and in committing said assault did use a weapon, to wit: a crowbar, thereby committing an indictable offence contrary to

section 267 (

a) of the Criminal Code . Count 5 On or about the 5th day March 2017 at or near St. John’s, Newfoundland and Labrador, while bound by a probation order dated the 1st of March, 2017, did unlawfully fail or refuse without reasonable excuse to comply with such order thereby committing an indictable offence contrary to

section 733.1(1) (

a) of the Criminal Code .

[2] It now falls to the Court to impose a just and appropriate sentence for these crimes. position of the crown and defence [3] Emphasizing the need for general deterrence and denunciation, the Crown submits that a global sentence of six to eightyears’ imprisonment is just and appropriate. The Crown observes that Mr. Samson’s actions amounted to a home invasion, anaggravating factor on sentencing. The Crown also notes that Mr. Samson is not entitled to the mitigating benefit of a guilty plea,[2] andobserves that Mr.

Samson has a prior criminal record. [4] Finally, the Crown points to the mandatory requirement for a DNA Order and firearms’ prohibition for ten years. [5] The defence accepts the mandatory orders, but submits that an overall sentence of three and one half to four years’imprisonment is just and appropriate. While acknowledging that Mr. Samson’s actions amount to a home invasion, the defence submitsthat the evidence with respect to the degree of planning involved is equivocal. Nor was there evidence of where he acquired the crowbarused in the assault. [6] The defence notes that while Mr.

Samson has a criminal record, most offences date from when he was a youth. Further, hehas no prior convictions as serious as those before this Court. The defence further points to an 11-year gap in Mr. Samson’s criminalrecord, from 2005 to 2016, and submits that his relapse was due to unfortunate events in his life, which caused him to once again turn todrugs. [7] The defence notes that Mr. Samson has strong family support, as evidenced by the presence of his family members in court. For his part, while he professed to have no memory of the events for which he was convicted, at his sentencing hearing Mr.

Samsonnevertheless accepted his guilt and apologized for his actions. principles of sentencing [8] The Court’s decision on a just and appropriate sentence must, of course, be guided by the principles codified in sections 718to 718.2 of the Criminal Code, R.S.C. 1985, c. C-46. [9] In R. v. Nasogaluak, 2010 SCC 6 the Supreme Court of Canada summarized these principles, as follows (at paragraphs 39 –40): 39. … The objectives and principles of sentencing were recently codified in ss. 718 to 718.2 of the Criminal Code to bring greaterconsistency and clarity to sentencing decisions.

Judges are now directed in s. 718 to consider the fundamental purpose of sentencing asthat of contributing, along with crime prevention measures, to "respect for the law and the maintenance of a just, peaceful and safesociety".

This purpose is met by the imposition of "just sanctions" that reflect the usual array of sentencing objectives, as set out in thesame provision: denunciation, general and specific deterrence, separation of offenders, rehabilitation, reparation, and a recent addition:the promotion of a sense of responsibility in the offender and acknowledgement of the harm caused to the victim and to the community. 40. The objectives of sentencing are given sharper focus in s. 718.1, which mandates that a sentence be "proportionate to the gravityof the offence and the degree of responsibility of the offender".

Thus, whatever weight a judge may wish to accord to the objectiveslisted above, the resulting sentence must respect the fundamental principle of proportionality.

Section 718.2 provides a non-exhaustivelist of secondary sentencing principles, including the consideration of aggravating and mitigating circumstances, the principles of parityand totality, and the instruction to consider "all available sanctions other than imprisonment that are reasonable in the circumstances",with particular attention paid to the circumstances of aboriginal offenders. [10] In R. v. Newhook, 2008 NLCA 28 our Court of Appeal observed that the primary consideration in sentencing for home invasiontype offences is general deterrence and denunciation. [11] Rowe, J. (now of the Supreme Court of Canada) stated (at paragraphs 31 and 35):

Section 348.1 (adopted in 2002), codified what has always been a significant aggravating factor in sentencing, that is to entersomeone's home and do injury or threaten to do injury to them there. For example, Chief Justice Glube stated in R. v. H. (P.J.) (2000),2000 NSCA 7 , 142 C.C.C. (3d) 252 (N.S.

C.A.) at para. 81: These types of offences (home invasion) require denunciation by society, deterrence of the accused and others from committing this typeof offence, and protection of the public as the primary considerations of sentencing those who choose to invade the sanctity of the homeof another and do violence through intimidation, terrorism or actual assault. 35. … I would affirm the statement by Chief Justice Wells that an 18 month sentence for home invasion is at the "low end" of theacceptable range. (I would contrast this with the four month sentence imposed by the Trial Judge here for the break and enter.) [12] In Newhook the offender entered the complainant’s house by breaking down her door, while holding a hatchet and pair ofhandcuffs.

He struck the complainant several times in the face, placed the handcuff on one of her wrists and dragged her down a trail atthe back of her property that led to his house. She managed to escape and sought assistance. The Court of Appeal increased the four-month sentence imposed at trial to three years. [13] While there can be no doubting the primary need to deter others, at the same time the rehabilitation prospects of the offender

are not to be ignored. [ 14 ] As the Supreme Court of Canada observed in Nasogaluak ,

section 718.1 of the Criminal Code sets out that the fundamental principle of sentencing is that a sentence must be proportionate to the gravity of the offence and the degree of responsibility of the offender. It is an expression of the principle that a fit sentence is one that takes into account the circumstances of the offence(

s) and of the offender ( R. v. Lundrigan , 2012 NLCA 43 ). [ 15 ] Indeed, proportionality is central to the sentencing process, as a sentence which properly respects this principle will at the same time ensure that the secondary goals of denunciation, restraint, promotion of justice for victims, and the maintenance of public confidence in the administration of justice are met. The principle of proportionality applies to sentencing for all criminal offences ( R. v. Cluney , 2013 NLCA 46 ). circumstances of the offence [ 16 ] In the early morning hours of 5 March 2017, Mr.

Samson entered the home of one, Lawrence Worthman, assaulted him with a crowbar and stole between $2,100 and $2,200. Mr. Samson was on probation at the time, an aggravating factor on sentencing. The detailed circumstances of the offences are as set forth in R. v. Penney , 2018 NLSC 143 (at paragraphs 10 – 14 ): 10. Mr. Worthman testified that on 5 March 2017 he was asleep on the couch in his living room, when around 5:00 a.m. he opened his eyes to see a man standing over him wielding a crowbar.

The man said words to the effect that someone living in the house owed $5,000 in drug money and that he was there to collect. Mr. Worthman denied that drug money was owed, to which the man repeated his demand. Mr. Worthman testified that he took $60 from his pocket and laid it on the coffee table, but the intruder demanded his wallet. 11. A struggle ensued, during the course of which Mr. Worthman received a laceration to his head, some abrasions to his eyes and a 3 centimeter cut to his back, which subsequently required four staples to close. According to Mr.

Worthman, his assailant got the upper hand and upon being stabbed in the back by the crowbar, he handed over his wallet. The assailant then fled. 12. Photographs of the scene show evidence of this struggle. There is an overturned chair in the living room and what appears to be blood on the floor. 13. Mr. Worthman then alerted his daughter (age 17) and two friends, who were having a "sleepover" downstairs. They applied pressure to his wound, while the police and ambulance were called. Mr. Worthman was taken to the hospital, where he was treated and released. 14. Mr.

Worthman is an auto mechanic by trade, with a full time job. He also has a large garage in his backyard where he does repair work on the side. According to Mr. Worthman, he had just completed a transmission job for a gentleman in Conception Bay South, and the previous afternoon, 4 March 2017, at approximately 1:00 p.m., he was paid $2,900, in $100 bills. He testified that when his wallet was stolen it contained between $2,100 and $2,200. While there was no evidence to corroborate this amount, I accept Mr. Worthman's testimony. [ 17 ] Neither the crowbar involved in the attack nor the money taken from Mr.

Worthman’s wallet were ever recovered. There was no evidence of where Mr. Samson acquired the crowbar and the evidence is equivocal as to the degree of planning that led to Mr. Samson’s attack on Mr. Worthman. The only evidence of how Mr. Samson came to be at Mr. Worthman’s residence came from his co- accused, Gina Penney, who stated that she dropped him there to retrieve her backpack containing drug paraphernalia. While the truth of Ms.

Penney’s evidence was not accepted, the Court was left with a reasonable doubt by her explanation (see Penney , at paragraphs 45 – 46 ). [ 18 ] That said, even if the planning was unsophisticated, both the Crown and defence agree that Mr. Samson’s actions amounted to “home invasion”. I agree. Without the necessity of a detailed review I am satisfied that the facts of this case meet the criteria for a home invasion and that the offences of robbery and assault took place in that context (see R. v.

O’Keefe , 2007 NLCA 58 , at paragraph 23 , where our Court of Appeal accepted the definition of “home invasion”, as outlined by the Alberta Court of Appeal in R. v. Matwiy , 1996 ABCA 63 ). [ 19 ]

Section 348.1 of the Criminal Code provides that in imposing a sentence in relation to a dwelling house, the fact the dwelling house was occupied at the time of the offence shall be treated as an aggravating circumstance, where the offender knew, or was reckless, as to whether the dwelling house was occupied and used violence or threats of violence to a person or property. This

section is applicable to the facts of this case. circumstances of the offender [ 20 ] A Pre-Sentence Report (PSR) in relation to Mr. Samson was prepared by Adult Probation Officer, Bailey Bennett, dated 14 September 2018. Mr. Samson is deemed to be a suitable candidate for community supervision, although such a disposition is not available to him, given the nature of his crimes. [ 21 ] Mr. Samson is one of three children and reports a positive childhood, void of any type of neglect, abuse, or trauma. His father passed away in 2007 and his mother is now in receipt of disability benefits, arising from a car accident in 2016. Prior to his arrest Mr.

Samson lived at home and assisted his mother with the family chores. He reports a close and supportive relationship with his mother and both siblings. [ 22 ] Mr. Samson quit high school after completing his grade 10. Since then he has not completed any further formal education, or training. However, he was gainfully employed from age 16 to age 32. [ 23 ] Not reflected in the PSR, but related by counsel, are periods of employment when Mr.

Samson was fishing in Greenland during 2008, 2009 and 2010, for three months at a time. [ 24 ] Most recently, he was employed for some six years as a dry waller with Premium Drywall. Unfortunately, he was laid off in 2016 due to a downturn in the economy. He has since relied on income support, through Advanced Education and Skills. [ 25 ] Mr. Samson’s family doctor was interviewed for the purpose of the PSR. He confirmed that Mr. Samson has been diagnosed as having Attention Deficit Hyperactivity Disorder (ADHD) for which, since 2015, he has been prescribed Methylphenidate.

While on remand he has been waitlisted for Narcotics Anonymous and Anger Management programs at Her Majesty’s Penitentiary (HMP). [ 26 ] Mr. Samson reports an eight-year dependency on Oxycontin, beginning when he was age 17. With the support of his girlfriend and family, he was able to terminate its use and begin the Methadone Maintenance Program. However, in 2016, due to life stressors; the loss of his job, the loss of a house he was building, and termination of a 13 year relationship, he “turned back to drugs”, cocaine in particular, to cope. [ 27 ] Mr.

Samson is presently 34 years of age, with a prior record as a young offender, and as an adult. His adult criminal record dates from 2004 – 2005 [3] and includes thefts, mischief related to property, being unlawfully in a dwelling house, assaulting a peace officer/resisting arrest and numerous breaches of Court orders. As noted by the defence, what follows is an 11-year gap in Mr. Samson’s record between 2005 and 2016 [4] . His lack of criminal involvement during this period is consistent with the period of relative stability in Mr.

Samson’s life, during which his addiction to drugs was under control. [ 28 ] His record dating from 2016 includes two counts of theft under $5,000, for which he was placed on probation and received a suspended sentence. In addition, he pled guilty in July of this year to three thefts and breaches of recognizance, dating from April – May 2018, and uttering threats and resisting arrest, dating from September 2017. He is presently awaiting sentencing for these crimes. There are no prior convictions for break and enter, or robbery.

The present convictions are by far the most serious faced by him. [ 29 ] When given the opportunity to speak, Mr. Samson related that while he had no memory of the evening in question, he was nevertheless sorry for what he had done to Mr. Worthman and his family, as well as to his own family. Victim Impact Statements [ 30 ] No Victim Impact Statements were filed in this matter, as provided for by

section 722 of the Criminal Code . I am nevertheless prepared to recognize that the event must have been traumatic for Mr. Worthman, as well as his daughter and her friends, who witnessed the aftermath of Mr. Samson’s assault. previous decisions [ 31 ] The principle of parity, that “a sentence should be similar to sentences imposed on similar offenders for similar offences committed in similar circumstances” (

section 718.2 (

b) of the Criminal Code ) is a fundamental principle of sentencing ( R. v. Kane , 2012 NLCA 53 ). Accordingly, the Court was referred by the Crown and defence to a number of prior sentencing decisions involving home invasion: • In O’Keefe our Court of Appeal reduced the offender’s sentence from eight years to six years, for parity reasons, as Mr. O’Keefe’s co-accused, one Mr. Goldsworthy, had previously been sentenced to three years as a result of a plea bargain. O’Keefe and his accomplice planned the robbery of a local drug dealer at his apartment .

Armed with palings from a nearby fence they forcibly entered the apartment, terrorizing its three occupants with death if they did not turn over money or drugs. O’Keefe was 32 years old at the time and was subject to three separation probation orders at the time of the offence. • In R. v. Manuel , 2010 NLTD(G) 177 , Whalen, J. (as he then was) accepted a joint submission of 6.5 years’ imprisonment in a violent home invasion involving an 88 year old man. On two separate occasions, one day apart, the offender and an accomplice broke into the complainant’s home, physically assaulting him and threatening to kill him.

The offender was 28 years old with no prior record, whose actions were driven by an addiction to illegal drugs. The Pre-Sentence Report labelled him as a “strong candidate” for rehabilitation. • In R. v. Lewis , 2012 NLCA 11 , our Court of Appeal upheld an eight year prison sentence for a violent home invasion of an older middle-aged couple. Three armed men, one carrying a handgun, broke into the victim’s home, and assaulted the couple, as one victim (with the gun to her head) begged for her life. For his part, Lewis did not actually enter the home.

However, he was found guilty of being a party to the offence by providing transport to the residence, conducting a drive-by to ensure the plan could proceed, and providing his accomplices with information on where money would be found in the home. While he did not participate in the violence, he was aware that his companions were armed and capable of such behavior. Lewis had a record of more than 100 criminal convictions, at least five of which were for break and enter. Others included assault, assault causing bodily harm and assault with a weapon and uttering threats. • In R. v.

King (2013), 336 Nfld. & P.E.I.R. 255, 106 W.C.B. (2d) 543 (N.L. (Prov. Ct.)) Laura Mennie, Prov. J., (now a judge of this Court), provided a useful

summary of the sentencing jurisprudence in cases of home invasion (at para. 30).

Based on this review Mennie, Prov. J. opined that the range of sentence is in the order of five to eight years, although there are exceptions (see Newhook , and R. v. Sheppard , 2006 NLTD 48 , for example, where the sentences imposed were three years). King pleaded guilty to breaking in the front door and entering the home of one Rodney MacDonald, wearing a mask and armed with a machete. He was accompanied by two other individuals carrying knives. All men had their faces concealed. King pointed the machete at Mr. MacDonald, telling him to lie on the floor.

The three accomplices took $60, Dilaudid pills, some marijuana and a computer. King was 30 years old with an extensive criminal record which included four prior convictions for break and enter. He was diagnosed with ADHD at a young age and reported that he was the childhood victim of sexual abuse. His actions were planned and fueled by an addiction to drugs. For the offence of robbery Mennie, Prov. J. sentenced King to five years’ imprisonment. • I was referred by the defence to the decision of Gorman, Prov. J. in R. v. Bennett (2014), 347 Nfld. & P.E.I.R. 73 , [2014] N.J. No. 51(Prov. Ct.) .

Bennett was an accomplice of Mr. King (see, King ) who carried a knife and like the other intruders had his face masked. Bennett was 20 years of age with no prior criminal record. His Pre-Sentence Report assessed him to be “a medium risk” of becoming involved in further criminal activities and deemed him to be a suitable candidate for community supervision. He pleaded guilty. Gorman, Prov.

J. observed that while Bennett’s youth and lack of a criminal record would normally be factors of prime importance in determining an appropriate sentence, they were not in this case due to the seriousness of the crime: Bennett was involved in a planned robbery of an individual at knifepoint in that person’s residence. In the normal course, Gorman, Prov. J. would have imposed a sentence for robbery of five years’ imprisonment. However, as the Crown sought a sentence of three years’ imprisonment and Bennett was led to believe he could rely on it, Gorman, Prov.

J. felt “compelled, though reluctantly” (at paragraph 75) to impose a sentence of three years’ imprisonment. • More recently, in R. v. Barry , 2016 NLTD(G) 103 Stack, J. sentenced the offender to 4.5 years’ imprisonment for a home invasion robbery. The complainant was asleep on his couch in the living room when he was awakened by knocking on his window. He opened the door for a person he knew, when Barry, whose face was covered with a green bandana, entered the living room.

He punched the complainant in the side of the head and at one point said, “Give me your money or I will shoot you.” During the struggle his wallet was stolen, containing what the complainant said was between $10,000 - $15,000. At the time of sentencing Barry was 30 years of age, single, with no children. He had over 50 prior criminal convictions, which included being unlawfully in a dwelling house and break and enter. The incident was fueled by his addiction to cocaine and he was waitlisted for addictions programming. • In R. v.

Canning , 2017 NLTD(G) 8 , the 19-year-old offender, with no prior record, pled guilty and was sentenced to 4.5 years’ imprisonment for a home invasion style robbery. There was a Pre-Sentence Report which characterized Canning as a medium risk to reoffend. Considering his young age, guilty plea, remorseful attitude and strong family support, Goulding, J. found that his prospects for rehabilitation were strong. The robbery was planned and premediated by Canning and two accomplices, after a night of partying.

The three entered the unlocked residence of their 56-year-old victim, who they knew occupied a wheelchair, wearing hoodies and black masks. Canning assisted in duct taping the victim to his wheelchair and in searching and ransacking his residence. His accomplices punched the victim in the head and pointed a handgun (pellet gun) in his face. In planning the robbery the three knew the victim lived alone and used a wheelchair. They believed he would have large amounts of drugs and money in the home. • In R. v.

J akupaj , 2017 NLTD(G) 120 Whalen, C.J., sentenced the 33 year old offender, with no prior criminal record, to four years’ imprisonment for break and enter of a dwelling house, amounting to a home invasion. Jakupaj was a taxi driver, who, after driving a 22- year-old university student to her apartment, waited for a few minutes before breaking in. He was spotted in the apartment, looking through the glass panel of a french door to the bedroom. He was chased outside, but made his escape after elbowing his pursuer in the eye.

In addition to the home invasion, Whalen, C.J. observed that as an additional aggravating factor, Jakupaj was in a position of trust (as a taxi driver) in relation to the female complainant. [ 32 ] While Mr. Samson has a criminal record it is not as extensive as the offender in Barry , King , or Lewis and does not involve prior convictions for break and enter. Nor did Mr.

Samson wear a mask as the offenders did in Barry and King . [ 33 ] While any home invasion is serious, with the possible exception of Barry and Jakupaj , the facts in the cases to which I was referred, particularly Manuel , Lewis , King and Canning , are more egregious than the case before me. Further, unlike the present case, there was evidence that each involved a high degree of premeditation and planning. [ 34 ] Absent cases involving a plea bargain, the sentence in Jakupaj of four years’ imprisonment was the lowest of the cases cited.

While in J akupaj the offender had no prior criminal record and was not armed, he did occupy a position of trust towards the female complainant. [ 35 ] While no two cases are alike, there are notable similarities between Barry and the present case. Both involved a home invasion in the early morning hours when the complaint was asleep on his couch in the living room, and both resulted in the theft of cash (although in the case of Barry it was significantly larger). Both offenders were in their early 30’s, both suffered from a dependency on cocaine and both had criminal records.

In both cases the complainant was assaulted, although Barry did not involve the use of a weapon.

[ 36 ] Mitigating factors in Barry were the offender’s guilty plea, expression of remorse and steps taken by him to address his drug dependency. Of these, there is the absence of a guilty plea in the present case. [ 37 ] On the other hand, the home invasion in Barry was premediated and planned with the offender’s accomplice using her familiarity with the complainant to gain access to his home. As previously noted, the evidence before me on the degree to which Mr.

Samson’s actions were planned, is equivocal. [ 38 ] Of the foregoing cases, I am satisfied that when it comes to the application of the parity principle, King , Barry , Canning and Jakupaj are of the greatest precedential value. analysis and disposition [ 39 ] The initial sentencing step in the context of multiple convictions is to determine the appropriate sentence for each individual offence. The sentence arrived at should presumptively be imposed consecutively (see R. v.

Hutchings , 2012 NLCA 2 at paragraph 20 ). [ 40 ] The second step is to consider whether some or all of the offences are so related that they can be considered to constitute a single criminal adventure (see Hutchings , paragraph 21 ). If so, those that are so regarded are generally made concurrent to the heaviest sentence arising from that single criminal adventure. [ 41 ] Where a single criminal adventure is shown to exist concurrent sentences may , but are not required to be imposed. There are recognized exceptions, such as breaches of court orders.

The sentence for breach of recognizance, or breach of probation, for example, will generally be served consecutive to the sentence for its related offence. [ 42 ] The third and final step in context of multiple offences, where there are consecutive sentences, involves the application of the totality principle, considering the factors identified in R. v. Mahoney , 2018 NLCA 16 (at paragraph 28 ). [ 43 ] The most serious of Mr. Samson’s crimes, conducted as it was, during a home invasion, is that of robbery (Count No. 1).

Taking the foregoing decisions in consideration, as well as the principles of sentencing discussed above, for the offence of robbery, I would impose a period of imprisonment of four years and two months. [ 44 ] As for the break and enter (Count No. 2) and assault with a weapon (Count No. 3), I would impose a sentence of three years and 16 months’ imprisonment respectively.

While presumptively these would be served consecutively, as they formed part of a single criminal adventure, I order that the sentences be served concurrent to the robbery offence. [ 45 ] For the breach of probation (Count No. 5), I impose a sentence of one month to be serve consecutive to the robbery sentence, for an overall sentence of four years and three months. [ 46 ] Finally, considering these factors outlined in Mahoney , I am satisfied that an overall sentence of four years and three months is not disproportionate to the gravity of the offence and the degree of responsibility of the offender.

Credit for Time Served [ 47 ] The Supreme Court of Canada observed in R. v. Safarzadeh-Markhali , 2016 SCC 14 , citing its earlier decision in R. v. Summers , 2014 SCC 26 that a credit of one day for every day of pre-trial custody will "almost never" put the person on equal footing with those denied bail (at paragraph 1). Time spent in pre-trial custody does not count for the purposes of parole eligibility, earned remission and statutory release. [ 48 ] Mr. Samson was arrested on 5 March 2017 and released on 9 March 2017 for a remand period of five days.

He was convicted on 21 June 2018 and has been in custody awaiting sentence for an additional 113 days, including today. I see no reason in principle to treat his pre-sentence custody any different than his initial remand following arrest. He will therefore receive a credit of 1.5 days for each of the 118 days he has been in custody to date, for a total credit of 177 days. For ease of calculation I have equated four years and three months to 1,550 days. [5] When the credit of 177 days is deducted from his sentence of 1,550 days, he has 1,373 days remaining to be served.

A warrant of committal will issue accordingly. [ 49 ] I am satisfied that the foregoing sentence respects the parity principle. It is more than that imposed in J akupaj , yet somewhat less than that imposed in Canning and Barry . While in Canning the offender did not have a prior record, the facts of that case, involving a considerable degree of planning and a wheelchair victim, were particular egregious.

In Barry the offender’s face was masked, the invasion was planned and the offender had a lengthy criminal record which included break and enter. [ 50 ] In imposing the foregoing sentence, I am also mindful of the Court of Appeal’s comments in Newhook of the need for general deterrence and denunciation in crimes of this nature, where the sanctity of one’s home has been violated. [ 51 ] That said, I am satisfied that the sentence imposed appropriately balances the need for denunciation and general deterrence with the rehabilitative prospects for Mr. Samson. While Mr.

Samson has a criminal record, it is largely dated, and does not include prior convictions for robbery, or break and enter. Regrettably, in 2016 a series of unfortunate events in his life caused him to relapse into past behavior. This, of course, is not an excuse for what happened, so much as an explanation. As is tragically often the case, his recent relapse into criminal behavior was fueled by his addiction to drugs, this time, cocaine.

That said, he has proven his ability to behave as a productive law abiding citizen in the past, and his sentence must not be so crushing as to deprive him of this opportunity in the future. [ 52 ] To his credit, Mr. Samson has expressed the desire to receive counselling. Hopefully, his time in prison will provide him with that opportunity. He is fortunate, as by all appearances he has the benefit of a loving family who will be there for him when he is released. He is still a young man and has shown the ability in the past to control his demons.

There is reason to believe that with proper counselling and support he can do so again.

Ancillary Orders Weapons’ Prohibition [ 53 ] Section 109(1) (

a) of the Criminal Code requires that the court prohibit an offender from possessing firearms and other related items if the person has been convicted of an "indictable offence in the commission of which violence against a person was used, threatened or attempted...". This criteria has been met in this case. Therefore, I order that Mr.

Samson is prohibited from possessing any firearm, cross-bow, restricted weapon, ammunition and explosive substance for a period of ten years after his release from imprisonment and from possessing any prohibited firearm, restricted firearm, prohibited weapon, prohibited device and prohibited ammunition for life. DNA Order [ 54 ] Robbery is a "primary designated offence." [ 55 ] Therefore, it is ordered that samples of bodily substances be taken from Mr. Samson for DNA analysis in accordance with

Part XV of the Criminal Code . _____________________________ Donald H. Burrage Justice [1] Mr. Samson’s co-accused, Gina Rosemary Penney, was acquitted of all charges.