R. v. Hutchings, 2021 NLSC 35

court crest IN THE SUPREME COURT OF NEWFOUNDLAND AND LABRADOR GENERAL DIVISION Citation : R. v. Hutchings , 2021 NLSC 35 Date : March 17, 2021 Docket : 201901G7194 Her Majesty The Queen v. Anthony Hutchings Before: Justice Donald H. Burrage Place of Hearing: St. John’s, Newfoundland and Labrador Date of Hearing: 3 March 2021

Summary: The offender was sentenced to four years and two months’ imprisonment for robbery committed during the break and enter of a dwelling house, and two years’ imprisonment, to be served concurrently, for the break and enter. From this sentence he was given credit of 1.5 days for each day of pre-sentence custody. Together with two accomplices (who were never identified) the offender kicked in the door to a dwelling, ordered one of its occupants to the floor and stole a ring from the occupant’s finger. He was brandishing what appeared to be a firearm at the time. There were no physical injuries and the ring was eventually recovered. Appearances:

Robin C. Singleton Appearing on behalf of the Crown Amanda L. Barfitt Appearing on behalf of the Accused Authorities Cited: CASES CONSIDERED: R. v. Hutchings , 2020 NLSC 154 ; R. v. Nasogaluak , 2010 SCC 6 ; R. v. O’Keefe , 2007 NLCA 58 ; R. v. Matwiy , 1996 ABCA 63 ; R. v. Lea , 2005 PESCAD 15 ; R. v. Newhook , 2008 NLCA 28 ; R. v. Kane , 2012 NLCA 53 ; R. v. Mahoney , 2018 NLCA 16 ; R. v. Canning , 2017 NLTD(G) 8; R. v. Barry , 2016 NLTD(G) 103; R. v. Samson, 2018 NLSC 198 ; 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 11 December 2020, following a trial, Anthony Hutchings was convicted of robbery during the break and entry of a dwelling house ( R. v. Hutchings , 2020 NLSC 154 ). The Indictment upon which Mr. Hutchings was tried and convicted reads, as follows: ON OR ABOUT the 12 th day of August, 2019, at or near St. John’s, in the Province of Newfoundland and Labrador, did break and enter a certain place, to wit: the dwelling house of Nathan Jones and Joshua Druken situated at 81A Neptune Road, contrary to Section 348(1) (a)- 348(1) (

d) of the Criminal Code . ON OR ABOUT the 12 th day of August, 2019, at or near St. John’s, in the Province of Newfoundland and Labrador, did rob goods from Nathan Jones and Joshua Druken, contrary to

Section 343 - 344(1) of the Criminal Code . [ 2 ] It now falls to the Court to impose an appropriate sentence, having due regard to the principles of sentencing codified in ss. 718 – 718.2 of the Criminal Code [1] , including the circumstances of the offences and the offender. Circumstances of the offences [ 3 ] Mr. Hutchings was one of three individuals who on Monday, 12 August 2019, kicked in the door to a basement residence on Neptune Road, St. John’s, breaking its window and tearing it from the casing. During the intrusion Mr.

Hutchings was brandishing what appeared to be a firearm and ordered one of the occupants, Nathan Jones, onto the floor. Fortunately, Mr. Jones was physically unharmed, but Mr. Hutchings stole a ring from his finger. The ring was a gift from Mr. Jones’ father. By circumstances that are less than clear, it was eventually returned. [ 4 ] None of the intruders wore a mask. However, Mr. Jones and Mr. Hutchings were known to each other, enabling Mr. Jones to recognize his attacker. In addition, Mr. Hutchings had appeared outside the residence several times earlier in the day.

None of the other participants were ever identified. The incident was brief, after which the intruders left on their own accord and drove away. [2] circumstances of the offender Pre-Sentence Report [ 5 ] A Pre-Sentence Report (PSR), dated 3 February 2021, was prepared by adult Probation Officer, Amanda Antle, in relation to Mr. Hutchings. In preparation of the report Ms. Antle interviewed Mr. Hutchings, his mother, uncle and common law partner. [ 6 ] Mr. Hutchings is currently 27 years old with grade 11 education.

He has been on consent remand since his arrest and while incarcerated at Her Majesty’s Penitentiary (HMP) has been attending classes for completion of his general equivalence diploma (GED). He comes from a supportive family, and reports that he gets along well with his three siblings and enjoys a positive and supportive relationship with both of his parents. His childhood was “good” and while money was tight, his needs were met and his family were quite close. [ 7 ] As a young teenager Mr. Hutchings drank alcohol and began experimenting with harder drugs, such as LSD.

Over time, this escalated into daily heavy use of substances including opiates, cocaine and crack cocaine. Needless to say, his drug dependency was the root cause of failed past relationships. He has a six year old daughter from one such relationship, with whom he currently has no contact.

[ 8 ] On a more positive note, during his incarceration Mr. Hutchings has engaged in counselling programs to assist in overcoming his addiction, and is currently in a stable common law relationship. His partner reports that the two have maintained regular contact while Mr. Hutchings is in prison and states that Mr. Hutchings has been a “supportive and loving father figure to her son.” Mr.

Hutchings’ partner reports that she has witnessed a positive change in his attitude, and during the past year, for the first time in their relationship, he actively sought out programs and made use of available services. [ 9 ] Mr. Hutchings’ mother similarly reports that she has witnessed positive changes in her son’s behavior. She described significant behavioural issues while he was growing up and as a child he was diagnosed as having ADHD, Tourette syndrome. She described him as “loveable, generous and kindhearted.” [ 10 ] After he was expelled from high school for behavioural issues, Mr.

Hutchings went to work with his uncle as a roofer/labourer. His uncle described him as “hardworking and reliable”, and there were no performance related concerns while employed. [ 11 ] In terms of the matters before the Court, Mr. Hutchings accepts responsibility for his actions and is remorseful. He informed Probation Officer Antle that he and his associates attended the victim’s address with the intention of collecting a debt. He stated that he was unaware they had the incorrect address and that he “feels horrible for the victim and regrets his behavior.” [ 12 ] In terms of his future plans, Mr.

Hutchings expressed the desire to complete his GED, obtain employment with his old roofing company, and reunite with his daughter. [ 13 ] Probation Officer Antle concludes that Mr. Hutchings presented as a “polite and respectful individual” who “actively engaged in the interview process and proactively provided information and supporting documentation.” Participation in Programming [ 14 ] Several letters were tendered by the defence, confirming Mr. Hutchings’ active participation in programming. [ 15 ] While incarcerated at HMP Mr.

Hutchings successfully completed the Addictions Awareness Program – a five session program designed to educate participants about drug use and explore options for possible treatment. Mr. Hutchings has also availed of individual counselling through the Doorways program and has been attending weekly AA meetings and yoga classes. Susan Green, Addictions Coordinator at HMP, writes that Mr. Hutchings has been an “engaged and enthusiastic” member of these programs. [3] [ 16 ] Mr. Hutchings presently meets with Alex White, Addictions Counsellor, for individual addictions counselling. Mr. White writes that Mr.

Hutchings has made strides towards connecting with the Medical Unit to express his need for Opioid dependency treatment. His eventual goal is to get on the suboxone program, if he is unable to do so while incarcerated at HMP. [4] [ 17 ] Mr. Hutchings commenced the Anger Management program, sponsored through The John Howard Society of Newfoundland and Labrador, on 3 February 2021. However, due to the return of COVID-19 restrictions, programming was suspended. Mr. Hutchings managed to complete two of the scheduled 10 sessions before the suspension, during which Mr.

Hutchings followed “group processes, provided on topic feedback, and seemed to comprehend the material being presented.” [5] [ 18 ] Mr. Hutchings commenced the Seeking Safety program on 18 January 2021, and as of 2 February 2021 has completed 7 of the 21 sessions. This program explores trauma, substance abuse, relapse prevention and recovery. Participants develop individualized plans to promote mental health and reduce the possibility of relapse into substance abuse.

During group sessions he demonstrated a strong level of engagement and understanding for program material and offered insight and support to other participants of the group. [6] Criminal Record [ 19 ] Mr. Hutchings has a prior conviction for assault with a weapon, or imitation, assault causing bodily harm, mischief, uttering threats, and forcible confinement, all arising from an occurrence on 5 May 2014. [ 20 ] He also has a prior conviction for uttering threats to damage or destroy property, arising from 2 June 2013, and theft under $5,000 arising from 28 November 2012. The bulk of Mr.

Hutchings adult convictions are for breach of probation (12) and failure to comply with a condition of his undertaking or recognizance (16). Mr. Hutchings’ Submission [ 21 ] At his sentencing hearing Mr. Hutchings was given the last word. He read from a prepared text in which he accepted full responsibility for his actions, apologized to his victims and his family, and expressed the desire to chart a better course for his future. I accept that Mr. Hutchings’ apology and expression of remorse was sincerely given.

Crown’s Position on Sentence [ 22 ] Emphasizing the need for denunciation and general deterrence, the Crown seeks a sentence of five years’ imprisonment for the robbery and two years concurrent for the break and enter. [ 23 ] In terms of ancillary Orders, the Crown observes that both a firearms’ prohibition for life and a DNA sample from Mr. Hutchings are mandatory in this case. Finally, the Crown seeks an order under s. 743.21 that Mr. Hutchings have no contact with Nathan Jones or Joshua Druken during the custodial term of his sentence.

Defence Position on Sentence [ 24 ] The defence takes no issue with the ancillary orders and the no contact order sought by the Crown.

[ 25 ] The defence also accepts that denunciation and general deterrence are the primary sentencing objectives in this case. However, in recognition of the positive steps taken by Mr. Hutchings towards rehabilitation, the defence submits that a sentence of 3-4 years’ imprisonment for the robbery, and 2-3 years’ imprisonment for the break and enter, to run concurrent, would be in keeping with judicial precedent and the principles of sentencing. The Principles of Sentencing [ 26 ]

Section 718 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”. This purpose is achieved by imposing sanctions that have one or more of the following objectives: • denouncing unlawful conduct • deterrence of the offender and other persons from committing offences • separation of offenders from society, where necessary • assisting in the rehabilitation of offenders • providing for reparations of harm done to victims, or the community • promoting a sense of responsibility in offenders and acknowledgment of harm done to victims and the community. [ 27 ]

Section 718.1 provides that “a sentence must be proportionate to the gravity of the offence and the degree of responsibility of the offender”. [ 28 ]

Section 718.2 further provides that a sentence should be increased, or reduced, to account for any relevant aggravating, or mitigating circumstances. In

section 718.2(

a) a number of deemed aggravating circumstances are enumerated, none of which are applicable to the sentencing of Mr. Hutchings. [ 29 ] In R. v. Nasogaluak , 2010 SCC 6 the Supreme Court of Canada summarized the foregoing 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 greater consistency and clarity to sentencing decisions.

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

This purpose is met by the imposition of "just sanctions" that reflect the usual array of sentencing objectives, as set out in the same 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 gravity of the offence and the degree of responsibility of the offender".

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

Section 718.2 provides a non-exhaustive list of secondary sentencing principles, including the consideration of aggravating and mitigating circumstances, the principles of parity and 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. [ 30 ] Pursuant to s. 348.1 (home invasion), it is a deemed aggravating circumstance where the break and enter was of a dwelling house, the dwelling house was occupied at the time, and the offender knew, or was reckless, as to whether the dwelling house was occupied and used violence, or threats of violence, to persons or property.

While “home invasion” is not otherwise defined in the Criminal Code , Mr. Hutchings’ actions meet the criteria for a home invasion and the offence of robbery took place in that context ( R. v. O’Keefe , 2007 NLCA 58 , at para. 23 , where our Court of Appeal accepted the definition of “home invasion”, as adopted by the Alberta Court of Appeal in R. v.

Matwiy , 1996 ABCA 63 ). [ 31 ] The treatment of such circumstances as aggravating constitutes a clear direction from Parliament that the “sentence must remind the individual offender, as well as other members of the public who might act in a like-minded manner under similar circumstances, that society does not tolerate the violation of the sanctity of a person’s dwelling” ( R. v. Lea , 2005 PESCAD 15 , at para. 33 ). [ 32 ] The remaining subsections of s. 718.2 speak to parity (that like cases be decided alike) and the goal of avoiding incarceration, where appropriate and reasonable: 718.2 … (

b) a sentence should be similar to sentences imposed on similar offenders for similar offences committed in similar circumstances; (

c) where consecutive sentences are imposed, the combined sentence should not be unduly long or harsh; (

d) an offender should not be deprived of liberty, if less restrictive sanctions may be appropriate in the circumstances; and (

e) all available sanctions other than imprisonment that are reasonable in the circumstances should be considered for all offenders, with

particular attention to the circumstances of aboriginal offenders. [ 33 ] While general deterrence and denunciation are the primary sentencing objectives in this case, the prospects for rehabilitation of the offender and other sentencing principles must not be ignored. Application of the Sentencing principles [ 34 ] A proper application of the parity principle first requires due consideration of the aggravating and mitigating circumstances in this case. Aggravating Circumstances [ 35 ] As noted, the fact that the robbery occurred in the context of a home invasion is an aggravating factor in sentencing. In R. v.

Newhook , 2008 NLCA 28 our Court of Appeal observed that the primary consideration in sentencing for home invasion type offences is general deterrence and denunciation. [ 36 ] The fact that Mr. Hutchings has a criminal record, which includes prior convictions for assault, is also an aggravating factor. I would observe, however, that this conviction is somewhat dated, arising from an incident in May of 2014. The bulk of Mr. Hutchings’ criminal record is for breaching court orders. Mitigating Circumstances [ 37 ] The positive measures taken by Mr. Hutchings while in custody is a mitigating consideration.

As is his apology and expression of remorse. In sentencing, the court must not lose sight of the prospects for rehabilitation of the offender. That said, and while it appears that Mr. Hutchings is now going in the right direction, at this point specific deterrence remains a relevant consideration. Parity: Like Cases to be Decided Alike [ 38 ] 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, I turn to a consideration of prior sentencing decisions with facts approximating those at hand. [ 39 ] In doing so, one must be cautious in the application of precedent in home invasion cases, for there is a distinction between home invasion robbery cases and the broader category of home invasion cases. The former are “not useful in considering what a fit sentence is when there is no robbery” ( Newhook , at para. 30 ). [ 40 ] Our Court of Appeal decision in R. v.

Mahoney , 2018 NLCA 16 is a useful starting point insofar as the Court accepted that the range of sentence for home invasion type robberies is between four and nine years (at para. 21). The facts in Mahoney are summarized by the Court as follows (at para. 9): 9 The facts respecting Mr. Mahoney's robbery of Ms. George disclose that Mr. Mahoney, armed with a knife, attended at Ms. George's home with Ms. Dunphy, who was also armed with a knife as well as a dirty syringe. Mr. Mahoney and Ms. Dunphy initially requested that Ms. George sell them some prescription medication. When she refused, Mr. Mahoney threatened Ms.

George and her adult daughter who was present with Ms. George in her residence, with the knife and demanded the medication. Ms. Dunphy threatened Ms. George and her daughter with the dirty syringe. Ms. George then implored her daughter to fetch medication from her medicine cabinet and give it to Mr. Mahoney. After obtaining the medication, Ms. Dunphy demanded $10.00 of Ms. George, but she told them she did not have any money. Mr. Mahoney and Ms. Dunphy then left Ms. George's home. [ 41 ] The Court upheld a sentence of 4.5 years imprisonment for the robbery in the context of a home invasion. [ 42 ] 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. [ 43 ] 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. [ 44 ] 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. [ 45 ] 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. [ 46 ] In R. v.

Samson , 2018 NLSC 198 , I sentenced the offender to four years and two months’ imprisonment for robbery conducted during a home invasion. Mr. Samson was also sentenced to three years’ imprisonment for break and enter and 16 months for assault with a weapon, to be served concurrently.

[ 47 ] Mr. Samson entered the victim’s residence, armed with a crowbar and proceeded to rob the victim of between $2,100 and $2,200. A struggle ensued, during which the victim received a laceration to his head, some abrasions to his eyes and a three centimeter cut to his back, which required four staples to close. The victim’s 17 year old daughter was home at the time and provided First Aid to her father while awaiting the ambulance. The money was never recovered. [ 48 ] At the time of sentencing Mr.

Samson was 34 years of age with a prior criminal record which included theft, uttering threats and resisting arrest. There were no prior convictions for robbery. disposition [ 49 ] In terms of the present offence, there are aggravating factors in play which were not present in Samson . Noteably, the robbery in this case involved a high degree of pre meditation. Mr. Hutchings staked out the residence by attending several times on the day of the robbery. He and his accomplices came prepared, with Mr. Hutchings brandishing what appeared to be a firearm. Second, it would appear that Mr.

Hutchings was the ring leader of the group. He was the only one to speak and took the lead in ordering Mr. Jones to the floor. Finally, there was a degree of violence in entering the dwelling which was not present in Samson . Here, the door was kicked in with such force that it was torn from its hinges. [ 50 ] On the other hand there are some facts in Samson which are more egregious than the present case. In Samson , the victim was attacked with a crowbar during the early morning hours, and robbed of over $2,000. The money was never recovered.

The victim was injured in the attack and his 17 year old daughter witnessed its aftermath while waiting for an ambulance. [ 51 ] In terms of the antecedents of the offenders, the offender in Samson was on probation at the time and had a criminal record, but like Mr. Hutchings, there were no prior convictions for break and enter, or robbery. Both offenders suffered from addiction and both offenders were taking steps towards rehabilitation. [ 52 ] However, the circumstances of the offender in Samson and this case are not as dire as that in Barry .

The offender in that case had over 50 prior criminal convictions which included being unlawfully in a dwelling house and break and enter.

The common denominator, as is all too often the case, was drug addiction. [ 53 ] Recognizing that no two cases are identical, when I compare the present case to others involving robbery in the context of a home invasion, I am satisfied that an appropriate sentence for the robbery is the same as that imposed in Samson . [ 54 ] Accordingly, I thus impose a sentence for the robbery of four years and two months’ incarceration and a sentence for the break and enter of two years’ incarceration.

As the two were part of the same criminal venture, the sentence for the break and enter will run concurrent to the sentence for the robbery. Such a sentence is in keeping with the principles of sentencing and in keeping with the parity principle. Credit for Time Served [ 55 ] 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. [ 56 ] Mr. Hutchings was arrested on 8 September 2019 and has been in pretrial custody until his conviction on 11 December 2020. He has been in pre-sentence custody from then until today’s date. Warrant of Committal [ 57 ] I calculate the total time Mr. Hutchings has spent in custody to date, including today, as 557 days. In accordance with Safarzadeh-Markhali , Mr. Hutchings shall receive a credit of 1.5 days for each day in custody to date.

I observe, as well, that both the Crown and defence are in agreement with this credit. Mr. Hutchings will thus receive a credit of 836 days towards his sentence, leaving 684 days remaining to be served. [7] A warrant for committal will enter accordingly. Firearms’ Prohibition [ 58 ] It is further ordered that, pursuant to s. 109(3), a firearms’ prohibition order will issue against Mr. Hutchings, whereby Mr. Hutchings will be prohibited from possessing any firearm, crossbow, restricted weapon, ammunition, explosive substance for life.

DNA Order [ 59 ] Pursuant to s. 487.04, break and enter of a dwelling house is a “primary designated offence”. Accordingly, in accordance with s. 487.051, I order the taking of such samples of bodily substances from Mr. Hutchings as is reasonably required for the purpose of forensic DNA analysis. No Contact Order [ 60 ] Finally, pursuant to s. 743.21, Mr. Hutchings is not to communicate, directly or indirectly, with Joshua Druken and/or Nathan Jones during the custodial period of his sentence.

_____________________________ Donald H. Burrage Justice