R. v. Isenor, 2014 NSPC 50

PROVINCIAL COURT OF NOVA SCOTIA Citation: R. v. Isenor , 2014 NSPC 50 Date: 2014/05/02 Docket: 2281759; 2391865; 2436108; 2436110; 2484489; 2495553 Registry: Dartmouth Between: Her Majesty the Queen v. Joshua Isenor Judge: The Honourable Judge Theodore Tax, Heard: May 2, 2014, in Dartmouth, Nova Scotia Decision May 2, 2014 Charge: CC 355(b); CC 145 Counsel: Alex Keaveny, for the Crown Patricia Jones, for the Defence By the Court: INTRODUCTION: [ 1 ] Mr. Joshua Isenor has entered guilty pleas to six offences which were committed between January 21, 2011 and August 15, 2012. The offences were the possession of stolen property contrary to

section 355 (

b) of the Criminal Code on January 21, 2011, two charges of failing to attend court on June 21, 2011 and again on August 15, 2012, two charges of break, enter and theft from a dwelling house contrary to section 348(1) (

b) of the Criminal Code on November 28, 2011 and failing to comply with the terms of a Recognizance contrary to section 145(3) of the Criminal Code on July 2, 2012 [ 2 ] The issue for the Court to determine is a fit and appropriate sentence, in all the circumstances of this offender and these offences, taking into account all of the appropriate purposes and principles of sentencing. POSITIONS OF THE PARTIES: [ 3 ] It is the position of the Crown Attorney that a fit and appropriate sentence for a consolidation involving all six offences would be a period of three years and 55 days in a federal penitentiary.

The Crown Attorney submits that the starting point of three years in prison is appropriate for the break, enter and theft charges which involved two separate dwelling houses as those offences are subject to life in prison as the maximum punishment. Although there are two separate break, enter and theft offences, it is the position of the Crown that given a relatively positive presentence report and the youthful adult offender, those charges should be served concurrently to take into account the principles of parity and totality.

The Crown seeks a DNA order as the break, enter and theft is a primary designated offence and also seeks partial restitution for the insurance company which paid a portion of the amount claimed by one of the victims. [ 4 ] With respect to the other offences before the Court, the Crown Attorney recommends 10 days for the charge of possessing stolen property contrary to

section 355 (

b) of the Criminal Code , five days for the failure to attend court on June 21, 2011 contrary to section 145(5) of the Criminal Code , 15 days for the failure to attend court on August 15, 2012 contrary to section 145(5) of the Criminal Code and 30 days for the breach of the recognizance-house arrest condition- on July 2, 2012, contrary to section 145(3) of the Criminal Code . The Crown Attorney recommends that all those days be served consecutive to any other sentence ordered by the Court for the two charges of break, enter and theft. [ 5 ] Defence Counsel submits that Mr.

Isenor is a youthful adult offender, who at the time of these offences had no prior criminal record. It is position of the Defence that Mr. Isenor has made a significant change in his life since November 2011, as is evidenced by the very positive Pre-Sentence report, the support of his family and the letter of support from his employer. Defence Counsel submits that there is a wide range of sentences for similar offenders who have committed similar offences in similar circumstances.

It is the position of the Defence that an appropriate sentence would include one of less than two years of imprisonment, which might allow Mr.

Isenor to serve it in the community. While Defence Counsel acknowledges that specific and general deterrence as well as the denunciation of unlawful conduct are the primary purposes of sentencing at play, she also submits that the Court should focus on the rehabilitation of Mr. Isenor, promoting a sense of responsibility in him and the principle of restraint. Defence Counsel submits that the appropriate sentence would be a sentence of imprisonment of two years less a day to be served in the community, followed by a period of three years under the terms and conditions of a probation order.

CIRCUMSTANCES OF THE OFFENCES [ 6 ] As indicated at the outset of this decision, Mr. Isenor comes before the Court today for the determination of a fit and appropriate sentence on the consolidation of six separate offences which were committed between January 21, 2011 and August 15, 2012. Briefly stated, the facts and circumstances of the charges for which Mr. Isenor has entered guilty pleas are as follows: 1) Possession of Stolen Property –

section 355 (

b) Criminal Code – January 21, 2011 – At about 5:00 PM on this date, Mr. Isenor was stopped by the police while he was operating a car near the 700 block on the Bedford Highway, Bedford, Nova Scotia. Mr. Isenor was operating the vehicle without a driver’s license, did not have any insurance for the vehicle and there was no registration for the vehicle. In addition, the police learned that the validation sticker on the license plate had expired. Upon further investigation, the police learned that the license plate itself had been stolen. Mr. Isenor was charged with possession of the stolen property.

He advised the police that he had purchased the plate from a friend. 2) Fail to Attend Court – section 145(5) Criminal Code – June 21, 2011 – On this day, Mr. Isenor was required to attend court for his first appearance on the possession of stolen property charge pursuant to an Appearance Notice. He failed to do so and as a result, a warrant was issued which was not executed until he was arrested on November 28, 2011 in relation to the two break, enter and theft charges and other offences. 3) Break and Enter and Theft – Two Offences – section 348(1) (

b) Criminal Code – November 28, 2011 – On this day, Mr. Isenor and another individual, committed two separate break-ins at 142 Lakeland Street, Beaverbank, Nova Scotia and also at 75 Colville Court, Beaverbank, Nova Scotia between the hours of 12:00 noon and 3:00 PM. Just before 3:00 PM, Helen Wallace and her four-month-old baby returned to the residence that she shared with her mother (Patricia Wallace) at 142 Lakeland Street. She went to her bedroom on the lower level of the house, placed the baby on her bed and then heard some rustling upstairs and a noise which sounded like something had fallen.

Believing that her cats had made the noise, she left her bedroom to look upstairs. While standing at the bottom of the stairs, she saw a young man near the top of the stairs. She yelled at him and he immediately went upstairs to the main foyer and ran towards the kitchen. She also saw a 2 nd young man upstairs who also ran to the hallway and out through the kitchen patio door. She followed them to the patio door and saw them run away.

She called the police and described the first young man as being white, approximately 24 years old, about 5 feet 8 inches high with buzzed medium brown hair, wearing black clothing and carrying a black backpack. Police attended with the K-9 unit and conducted a track for about two hours to a location which ended between 328 and 342 Sackville Drive. The police track went over water on several occasions in an apparent effort to cause the dog lose the track.

During the track, the K-9 unit located a black backpack which contained two laptops [one of which belonged to the Wallace family], two blackberries, jewelry, Canadian Tire money and hockey cards. Mr. Isenor and the other male were located in that area, not by the K-9 unit but by other officers. When the two suspects were arrested, their clothes were muddy and wet. While conducting the K-9 track, the police received a report of another break-in at 75 Colville Court, in Beaverbank, Nova Scotia. Ultimately, DNA samples were taken at 142 Lakeland and the DNA profiles matched both Mr. Isenor and the other male.

The evidence indicated that the suspects had gained entry to the house by cutting open the screen door on the back patio. Some of the Wallace property was recovered but a large amount was not recovered, including diamond engagement rings, gold wedding bands, sapphire rings surrounded by white diamonds and other family jewelry. The Wallace’s made a claim with the insurance company for about $15,000.00 of lost property, but because they did not have receipts for all of the items, some of which were gifts, they only received $3000.00 from the insurance company.

Some of those gifts had been in the family for many years. Since the items had not been specifically identified or valued in their insurance policy and receipts were not available to identify the specific amount of the loss, the Crown does not seek restitution. However, it was noted that many of the items, which were taken and not recovered, were of a very personal nature with significant sentimental value which cannot be replaced. With respect to the break, enter and theft at 75 Colville Court, the patio door had been pried open to gain entry into the residence.

The break-in at 75 Colville Court had actually occurred prior to the break-in at 142 Lakeland Street. Items taken from 72 Colville Court included electronics, two laptops, jewelry including a lady’s watch, a silver ring, three gold rings, gold bracelets, gold and silver chains and earrings, lockets, Canadian Tire money, hockey cards and two blackberries. Some of those items were located in the black backpack found during the K-9 track. Photos of the Jordan house showed that Mr.

Isenor and other male had gone through the bedrooms in the house, emptying drawers looking for items of value and dumping out the containers of change. In terms of 75 Colville Court, some of the items were recovered while others were reimbursed by the insurance company in the amount of $4131. The Crown seeks restitution for that amount in favor the insurance company on behalf of Mr. Brad Jordan, the occupant of 75 Colville Court, Beaverbank, Nova Scotia.

In addition, a number of the items taken from the residence at 75 Colville Court were not recovered. 4) Failure to Comply with Recognizance – section 145(3) – Criminal Code - July 2, 2012 – As a result of the break, enter and theft charges from November 28, 2011, Mr. Isenor was released under the terms of a recognizance on April 25, 2012, which included a house arrest provision to remain in his residence at all times subject to certain exceptions.

On July 2, 2012, around 4:27 PM, police observed a man hanging around a pizza place located near the corner of Sackville Drive and Woodbine Avenue in Middle Sackville, Nova Scotia. Police officers approached the man and identified him as Mr. Isenor. When they

briefly spoke to Mr. Isenor, he was slurring his words and then he ran off. It was determined that Mr. Isenor was under terms of a house arrest which required him to travel to and from his work with Matthews Cleaning and Maintenance by a direct route. Defence Counsel confirmed that Mr. Isenor had been in breach of the house arrest condition in the Recognizance, because he had not proceeded from his work to his home by a direct route. 5) Fail to Attend Court – section 145(5) Criminal Code – August 15, 2012 – Mr.

Isenor had been arrested on the charges of failing to comply with the terms of the recognizance on July 2, 2012 and was released on a Promise to Appear in court on August 15, 2012. He failed to attend court on that date. VICTIM IMPACT STATEMENTS: [ 7 ] In this case, no formal victim impact statements were filed by any members of the Wallace family or any members of the Jordan family. However, in the facts before the Court, both of the residents of 142 Lakeland Street and 75 Colville Court have outlined the very significant loss of jewelry and other valuables that were primarily gifts from other people.

The monetary loss which was estimated by the parties was in the area of the $15,000.00 for the Wallace family and well over $4000.00 for the Jordan family. The Court was advised that only a relatively small amount of the property has been recovered, and that the victims’ insurers have only made partial restitution.

Although the Court does not have a formal Victim Impact Statements in hand, given the description of the items taken and the significant sentimental value of many of those one-of-a-kind items which were taken, but not recovered, it is reasonable to infer that the victims have lost items which can simply never be replaced. [ 8 ] In addition, the Court can easily understand the unsettling nature of a break, enter and theft of a victim’s residence as a result of their private space being violated by intruders, leaving them wondering whether their security in their own private residence would be assured in the future.

No doubt, that feeling of insecurity for Helen Wallace would be even more accentuated as she walked into her mother’s residence during the commission of a break, enter and theft with her 4-month-old baby in her arms. CIRCUMSTANCES OF THE OFFENDER: [ 9 ] The Court had the benefit of the Pre-Sentence Report which indicated that Mr. Isenor is now 23 years old. Mr. Isenor had no prior adult record at the time of committing any of these offences, however, there is one subsequent conviction on January 20, 2014 for an offence committed on January 19, 2014. At that time, Mr.

Isenor entered a guilty plea to a failure to comply with the condition in a recognizance an undertaking contrary to section 145(3) of the Criminal Code and he received a 30 day sentence to be served on an intermittent basis. [ 10 ] Mr. Isenor resides with his mother and has no contact with his natural father but had a very positive relationship with his step- father until he passed away in 2005. After that, Mr. Isenor found himself living in group homes between the ages of 15 and 17, but in November 2011, he returned to reside in his mother’s residence and was able to secure full-time work.

His mother advised the Probation Officer that she has noticed “a very positive change in her son’s attitude towards others, his social life and his work”. While in school, Mr. Isenor’s mother explained that he suffered from low self-esteem and a learning disability which caused him to experience difficulties with comprehension. Since then, Mr. Isenor has worked hard to overcome these difficulties and has made great strides in the right direction. [ 11 ] It was noted in the Pre-Sentence Report that Mr. Isenor obtained a grade nine level of education.

After the death of his stepfather, he encountered difficulties at home and left the house to join the workforce on a full-time basis. For the last two and half years, he has worked with Matthew’s Cleaning and Maintenance and prior to that, he worked for a short period with Mr. Bruce Christmas. He also worked previously at Petro Canada as well as Tim Horton’s and Wendy’s restaurants. His current employer regards him as a hard worker, who originally had worked with him several years ago, during the period of time when he had personal difficulties.

Since returning to work at Matthews Cleaning and Maintenance, his supervisor has indicated that he has seen “a 180 degree turn in the subject’s attitude and life”. He is highly regarded as a valued employee who has an excellent work ethic and a very hard worker. The employer also indicated that they are prepared to support Mr. Isenor to help him move forward in his life with positive changes. Mr. Isenor advised that he often works seven days per week, eight hours per day, earning approximately $12.00 per hour. [ 12 ] In terms of the Mr.

Isenor’s health and lifestyle, he is in good physical health but it was noted that at age nine he was diagnosed with Attention Deficit Hyperactivity Disorder (ADHD) and was prescribed medication. Mr. Isenor has stopped using the medication due to negative side effects. [ 13 ] Mr. Isenor advised the probation officer that he accepted responsibility for the offences and expressed remorse. He did not attempt to minimize his involvement and stated that the offence took place when he was “broke” and that his actions were “stupid”. The employer and the operations manager where he works, both indicated that Mr.

Isenor would be devastated if he were to be incarcerated and that he would lose his position with Matthew’s Cleaning and Maintenance, which would impact his self-esteem and also his hopes for the future. Both individuals offered their full support to Mr. Isenor if the Court ordered a disposition in the community. [ 14 ] In addition, during the sentencing submissions, Defence Counsel submitted a letter of the reference for Mr. Isenor from his current employer. In that letter which was sent on March 11, 2014, the supervisor of Ralph Connor Co. Ltd. indicated that he leads the flooring installation team and that Mr.

Isenor was recently hired by their company. He has been in their employ for several weeks and has proven to be “a responsible, dependable and competent addition to my installation team”. He adds that Mr. Isenor completes his tasks in a professional and timely manner and that he is prepared to recommend him for further training and eventually apprenticeship and sees him in a leadership position down the road. [ 15 ] Finally, the Probation Officer concluded that Mr.

Isenor impressed him as “a very knowledgeable individual” who, given the circumstances, “has worked extremely hard to improve his lot in life.” He was regarded as “an acceptable candidate for community supervision, along with any sentence imposed.” APPLICABLE PURPOSES & PRINCIPLES OF SENTENCING:

[16] In all sentencing decisions, determining a fit and proper sentence is highly contextual and is necessarily an individualizedprocess which depends upon the circumstances of the offence and the particular circumstances of the specific offender. On this point,the Supreme Court of Canada stated, in R. v.

M.(C.A.), (SCC), [1996] 1 SCR 500 at paras. 91 and 92, that thedetermination of a just and appropriate sentence requires the trial judge to do a careful balancing of the societal goals of sentencingagainst the moral blameworthiness of the offender and the gravity of the offence while at the same time taking into account the victim orvictims and the needs of the current conditions in the community. [17] The purposes and principles of sentencing are set out in sections 718, 718.1 and 718.2 of the Criminal Code.

In this case, Ifind that the primary objectives are the denunciation of the unlawful conduct, specific deterrence of Mr. Isenor and general deterrence oflike-minded offenders, the protection of the public as well as to assist in the rehabilitation of the offender. [18] Parliament has also included the principle of proportionality found in

section 718.1 of the Criminal Code which requires theCourt to determine a sentence that is proportionate to the gravity of the offence and the degree of the responsibility of the offender. [19] In

section 718.2 of the Criminal Code, Parliament has required the Courts to consider other sentencing principles in imposing ajust sanction which will contribute to respect for the law and maintenance of a just, peaceful and safe society. Pursuant to section718.2(

a) of the Criminal Code, the Court is required to increase or reduce the sentence to be imposed by taking into account anyrelevant aggravating or mitigating circumstances relating to the offence or the offender. [20] The parity principle outlined in

section 718.2(

b) of the Criminal Code requires the Court to take into account the fact thatsimilar sentences should be imposed on similar offenders for similar offences committed in similar circumstances. [21] Finally, the Court must also consider the totality principle found in

section 718.2(

c) of the Criminal Code which requires theCourt to consider, where consecutive sentences are imposed, that the combined sentence should not be unduly long or harsh. The totalityprinciple must be considered in this case, as the Court is determining the appropriate sentence for six charges which occurred over an 18month period. [22] With respect to the totality principle, in R. v.

M(C.A.), (SCC), [1996] 1 SCR 500, the Supreme Court ofCanada stated, at para. 42, that the totality principle, which requires the sentencing judge who orders an offender to serve consecutivesentences for multiple offences, is to ensure that the cumulative sentence rendered does not exceed the overall culpability of theoffender.

The Court approved Clayton Ruby’s articulation of this principle in his Sentencing treatise which stated that the purpose is toensure that a series of sentences, each properly imposed in relation to the offence to which it relates, is in aggregate “just andappropriate.” A cumulative sentence may offend the totality principle if the aggregate sentence is substantially above the normal level ofa sentence for the most serious of the individual offences involved, or if its effect is to impose on the offender “a crushing sentence” notin keeping with his record and prospects. [23] In addition, in view of the fact that Mr.

Isenor is a youthful first-time adult offender, I find that it would also be appropriate toconsider the impact of this sentence on his rehabilitation. This principle of restraint in imposing a first sentence of imprisonment wassuccinctly stated by Rosenberg J.A. in R. v. Priest, (Ont.

C.A.) at page 5: “Even if a custodial sentence was appropriate in this case, it is a well-established principle of sentencing laid down by this Court that thefirst sentence of imprisonment should be as short as possible and tailored to the individual circumstances of the accused, rather thansolely for the purpose of general deterrence.” AGGRAVATING/MITIGATING FACTORS: [24] In terms of mitigating factors present in this case:

(1) Mr. Isenor is now 23 years old, he had no prior adult convictions or anyyouth court dispostions which were referred to by the Crown. As such, he is a youthful, first-time adult offender;

(2) Although he hadentered not guilty pleas on several of the charges before the Court, there were a changes of plea well before the trial dates and as a result,witnesses were not required to be present in court;

(3) Mr.

Isenor has entered early guilty pleas to consolidate several other matters, thussaving court time and the requirement for witnesses to attend court; (4) he has expressed his remorse for his actions and accepted fullresponsibility for them; (5) there is a positive Pre-Sentence Report and support from his family; (6) he has worked on a full-time basisfor several years and his employers have provided very positive references. [25] In terms of the aggravating factors present, particularly with respect to the break, enter and theft charges: (1) those chargescannot be regarded as impulsive actions, but rather as planned and premeditated; (2) the charges involved break-ins at two separate,occupied residences on November 28, 2011 and at the Wallace residence, a young mother with her infant baby encountered Mr.

Isenorwho was in the midst of committing the offence; (3) there was a significant loss of valuable personal property at both residences, withMr. Isenor and the other male stealing several items which were not recovered nor were they reimbursed by the insurance company andcan never be replaced due to the highly personal nature and sentimental value of the objects; (4) the charges before the Court arise fromfive separate incidents over a period of 18 months between January 21, 2011 and August 15, 2012.

ANALYSIS: [26] As is evident from the sentencing submissions made by the Crown Attorney and Defence Counsel, there is a significantdifference between a three year sentence to be served in the penitentiary and two years to be served in the community under the terms ofa conditional sentence order, followed by a period of three years under the terms of a probation order.

In their submissions, both Counselhave recognized that denunciation of the unlawful conduct, specific and general deterrence are the primary purposes of sentencing atplay in this case, but Defence Counsel also places an equal focus on the rehabilitation of Mr. Isenor. [27] The Crown Attorney points out that an offence contrary to section 348(1)(

d) of the Criminal Code is an indictable offence andwhere the offence involves a break and entry into a dwelling house, the offender could be subject to a maximum terms of imprisonmentfor life. There is, however, no mandatory minimum sentence imposed for this offence.

[28] Looking at the various charges before the Court, there is no question that in applying the proportionality principle found insection 718.1 of the Criminal Code, the two charges of break, enter and theft of dwelling house represent the most serious before theCourt and I find that Mr. Isenor’s degree of responsibility for those two charges is very high for the reasons that I have outlined under theaggravating circumstances before the Court. [29] With respect to the “parity principle” found in

section 718.2(

b) of the Criminal Code, that is, the sentence for Mr. Isenorshould be similar to sentences imposed on similar offenders for similar offences committed in similar circumstances, both the CrownAttorney and Defence Counsel referred to several cases. I simply note here that given the highly individualized nature of the sentencinghearing which focuses on the circumstances of the offences and the circumstances of the individual offender, it is often difficult to findthat similar offender who has committed similar offences in similar circumstances. [30] The Crown Attorney referred to the decisions of R. v.

Zong, (NS CA), [1986] NSJ No. 207 (Nova ScotiaCourt of Appeal) and R. v. McAllister, 2008 NSCA 103 which established a three-year “benchmark’ or “starting point” for a break,enter and theft involving commercial premises. In the former case, the premises broken into was a pharmacy in search of narcotics andin the latter case, it was the Amherst Justice Center to obtain cash and cheques from the safe.

The Nova Scotia Court of Appeal noted inthose cases that the appropriate sentence may be one that moves up or down from that “benchmark” or “starting point” depending uponthe circumstances of the offence, the particular offender and any aggravating or mitigating factors. In fact, in R. v. Adams, 20110NSCA 42, the Court reaffirmed the three year benchmark and also stated that it is a sliding scale which may descend to a two-year levelin cases involving individuals who do not have prior records. [31] The Crown Attorney also referred to R. v.

Davidson, 2011 NSPC 14 for the “parity principle” as that case involved a youthful,first time adult offender who had entered guilty pleas to both a break, enter and theft of a dwelling house contrary to section 348(1)(

b) ofthe Criminal Code. The offender was 18 years old at the time of the offences and was 19 years old when the sentence was imposed. The Court took into account the mitigating factors of early guilty pleas, a positive pre-sentence report, his attempts to improve his levelof education and the fact that he had no prior criminal record.

However, the Court also noted that there were very serious aggravating circumstances which included the significant degree of preparation and calculation in the commission of the two offences and in hisefforts to convert the stolen property into cash by claiming to be a member of the victim’s family.

In that case, the Court rejected theDefence submission for a lengthy conditional sentence order of imprisonment in the community and ordered a two-year sentence in afederal institution on the break, enter and theft charge with a further one year consecutive for the attempted break, enter and theft charge. [32] For her part, Defence Counsel referred the Court to several cases for the purpose of establishing that there is a wide range ofsentencing for offenders who have committed the offence of break, enter and theft of a dwelling house contrary to section 348(1)(

b) ofthe Criminal Code. Defence Counsel also noted that those cases show that where serious charges such as the break, enter and theft of adwelling house occurred, the Court’s focus was on specific and general deterrence, but that general deterrence and rehabilitation of theoffender can also be achieved in a multitude of ways. In this regard, Defence Counsel referred to R. v. Best, 2005 NSSC 208, R. v. Hall (1986), (NS CA), 72 NSR (2nd) 148 (NSSC-AD) and R. v. Weaver (1990), 99 NSR (2nd) 432 [NSCA]. [33] Defence Counsel also referred to R. v.

Barnes, 2004 NSSC 257, which involved a 50-year-old with 12 prior convictions forbreak and enter, who was on probation at the time of the offence. The Court noted that, since the offence committed, the offender hadtaken steps to rehabilitate himself by working steadily and had not engaged in any further criminal conduct in the two and half yearssince the commission of the offence. He had family support and expressed his remorse for his actions.

However, the Court observedthat when an offender goes into another person’s home for the purpose of committing criminal offences, Parliament has determined thatit is one of “the most serious offences” in criminal law. The Court ordered a sentence of two years and six months, but provided theoffender with the credit of six months for pre-sentence custody, which resulted in a sentence of two years in a federal penitentiary. [34] Defence Counsel also referred to the case of R v.

Bursey (1991), (NS CA), 104 NSR (2nd) 94 [NSCA]where the Crown appealed a sentence of two years under the terms of probation for a break, enter and theft charge of a businesspremises. The offender was 20 years old at the time of the offence and entered an early guilty plea to the charge contrary to section348(1)(

b) of the Criminal Code. The articles taken from the store were valued between $3000.00 and $4000.00 with only some of thembeing recovered.

The Court of Appeal reiterated, at para. 14, that a three-year term of imprisonment was a benchmark, but that all casesmust be dealt with on an individual basis and they found that there was “no similarity at all between the facts before us and those inZong.” [35] In upholding the trial judge’s decision in Bursey, the Court of Appeal held that there were “a number of unique aspects” and“unique circumstances” which included a troubled childhood and adolescence, being incarcerated at the Shelburne School for Boys,continuous problems with drugs and alcohol from age 11 to the commission of the offence as well as prior convictions and terms ofimprisonment for property offences including a break, enter and theft.

Between the time of the offence and the date of sentence, theoffender had stayed away from the former associates, had refrained from alcohol or drugs, formed a relationship with a young lady whohe planned to marry and had found work. The employers spoke highly of him and he had shown remorse by writing a letter of apologyto the manager of the store. The offender expressed a willingness to pay for the damage done and to make restitution for the missingitems. He had taken out a loan and was in the process of paying it back.

In the final analysis, the Court of Appeal, held that they wereunable to say that the trial judge had imposed a clearly inadequate sentence in relation to the offender and the offence. AVALABILITY OF CONDTIONAL SENTENCE ORDER: [36] The Safe Streets and Communities Act (S.C. 2012, c.1, s.34) came into force on November 20, 2012 and amended section742.1 of the Criminal Code dealing with the imposition of a Conditional Sentence Order (hereafter “CSO”).

Since the offences ofbreak, enter and theft occurred in November 2011, the Court’s consideration of whether a conditional sentence order of imprisonment inthe community is an “available” option and if so, whether it is the “appropriate” order to be granted in the circumstances of this case, isto be determined by the legislation which existed at that time. [37] In November 2011,

section 742.1 of the Criminal Code, a CSO of imprisonment in the community was not an availablesentencing option for the sentencing judge, where, for example, Parliament created statutory bars such as being convicted of a “serious

personal injury offence” as defined in

section 752 or being convicted of an offence punishable by a minimum term of imprisonment. Looking at the statutory bars contained in

section 742.1 of the Criminal Code to an order of a CSO for the break, enter and theft charges, I find that there were no statutory bars present in November 2011. [ 38 ] Having concluded that there were no statutory bars to the order of a CSO,

section 742.1 of the Criminal Code also required the sentencing judge consider one additional criterion to determine whether a CSO was an “available” sanction. In that regard, a CSO would only remain an available sanction if the sentencing Court was to conclude that the sentence of imprisonment to be imposed would be less than two years. In other words, if the sentence to be ordered would result in a federal term of incarceration, then the option of serving the sentence as a CSO in the community was no longer an available option for the Court to consider. [ 39 ] If the sentencing Court concluded that the just sanction was a sentence of less than two years of imprisonment, then

section 742.1 of the Criminal Code as it stood in November 2011, also required the sentencing judge to determine whether the CSO was an “appropriate” sanction by considering two additional factors” : (

a) service of the sentence of imprisonment in the community would not endanger the safety of the community; AND (

b) service of the sentence in the community would be consistent with fundamental purpose and principles of sentencing in

section 718 - 718.2 of the Criminal Code . [ 40 ] In this case, considering that final factor of whether a CSO is an “available” sanction, I would just have to determine that the appropriate sentence of imprisonment would be less than two years.

Looking at the parity principle, it is clear that the Nova Scotia Court of Appeal has established a “benchmark” or “starting point” of three years in prison for the offence of break, enter and theft, with the range of sentences for commercial establishments and buildings other than dwelling houses, resulting in slightly lower sentences where there were several significant mitigating factors and relatively few aggravating factors. [ 41 ] In determining the appropriate sentence today, I am dealing primarily with two separate incidents, which occurred relatively close in time, but in this case, Mr.

Isenor and another person broke into, entered and stole property from two dwelling houses in the middle of the day. Since those home were occupied by residents, I find that theses offences were planned to occur when the residents were expected to be out of the house. However, at the Wallace residence, one of the residents returned to the house with her young baby and actually confronted, Mr. Isenor while he was in the midst of committing the offence.

Given the significant value of the property taken from those residences, the large majority of which was not recovered and due to the highly sentimental value of the items which cannot be replaced, I find that these were both serious offences for which the maximum punishment is life in prison and that Mr.

Isenor’s degree of responsibility was very high. [ 42 ] Furthermore, looking at the parity principle, I find that the appropriate sentence for these break, enter and theft charges would be more similar to the Davidson case than to the Bursey case, and that therefore the appropriate sentence of imprisonment for the two break, enter and theft charges of occupied residential dwellings would be well in excess of two years of imprisonment.

As a result, I therefore conclude that a CSO is not an “available” sanction in all the circumstances of this case as the just and appropriate sanction is a sentence of more than two years in prison. THE JUST AND APPROPRIATE SANCTION: [ 43 ] As indicated above, considering the parity principle, I find that this case is much closer to the facts and circumstances found in the Davidson case than in the Bursey case.

The Bursey case also dealt with a youthful first-time adult offender who had entered an early guilty plea, but in his case, the break, enter and theft was of a commercial premises as opposed to dwelling houses. Secondly, the Court of Appeal noted that the trial judge had regarded the “unique aspects” and “unique circumstances” of the offender, and in this case, although some of those mitigating factors are present, many others are not. I also regard the fact that Mr.

Bursey had taken out a loan to reimburse the store for the damage done when he broke into the premises and to pay restitution for the items which were not recovered, as a very significant difference with this case. Simply put, I find that the Bursey case does not involve a similar offender who committed a similar offence in similar circumstances to Mr. Isenor’s circumstances. [ 44 ] In the final analysis, I find that the appropriate range of sentence for each of the break, enter and theft charges in relation to the dwelling houses would be two and half to three years in prison.

However, given the statement of principle outlined by Rosenberg J.A. in the Priest case, I agree that the first sentence of imprisonment should be as short as possible and tailored to the individual circumstances of the accused rather than solely for the purpose of general deterrence. [ 45 ] In addition, in this case, I also have to consider the totality principle for consecutive sentences to ensure that the aggregate sentence is “just and appropriate” and is not substantially above the normal level of sentence for the most serious of the individual offences involved.

In this regard, I have to take into account that, on the same day, Mr. Isenor broke into two separate dwelling houses, entered them and stole articles of a very significant financial and sentimental value, many of which were not recovered.

There is no doubt that if I was to order the normal range of sentence for each of the two break, enter and theft charges, the aggregate sentence would likely be unduly long and harsh, particularly for a youthful, first-time adult offender with several positive factors for promoting a sense of responsibility and his rehabilitation. [ 46 ] Having considered all of the circumstances of the offender and of these offences, several significant mitigating factors as well as the aggravating factors, the proportionality principle, the parity principle and the principle of restraint, I conclude that the just and appropriate sentence for the two break, enter and theft which occurred within a relatively short time of each other is to order a sentence of two and half years which equates to 912 days of imprisonment in a federal penitentiary.

I hereby order that sentence of imprisonment for each of those two offences, however, they are to be served concurrently with each other. In ordering this period of imprisonment, the Court notes that a break, enter and theft charge is one of the most serious offences in our Criminal Code and that the sentence imposed today underlines the message of general deterrence and denunciation of the unlawful conduct when intruders violate the safety and security of a person’s residence. [ 47 ] With respect to the other charges before the Court for sentencing, given the fact that Mr. Isenor was at the time of those

offences, a youthful first time offender without any adult record, I find that the appropriate disposition for possessing stolen property would, in all likelihood, have been to suspend sentence and order a period of probation and for the charges of failing to attend court on two occasions, I find the appropriate disposition would likely have been to order fines. Given that determination, I find that the sentences to be imposed upon Mr. Isenor for the offence of failing to attend court on two occasions contrary to section 145(5) of the Criminal Code should be one day deemed served by his presence here in court today. For the possession of stolen property, charge contrary to

Section 355 (

b) of the Criminal Code , 30 days in custody but it is to be served concurrently with the sentence that I have just ordered. Finally, with respect to the breach of the house arrest condition, contrary to s. 145(3) of the Criminal Code , on July 2, 2012, I agree with the Crown Attorney that the appropriate disposition for that offence should be a sentence of 30 days.

Given the nature of that offence and when it occurred, I find that the 30 days of imprisonment for the offence contrary to section 145(3) of the Criminal Code , should be served on a consecutive basis to the sentences that I have just ordered for the break, enter and theft charges. [ 48 ] Therefore, for all the offences which are before the Court for sentencing today, I hereby order Mr.

Isenor to serve a total of two years and seven months which equates to 942 days of imprisonment in a federal penitentiary . [ 49 ] Given the fact that I have ordered that significant period of incarceration, I hereby waive the victim fine surcharge for all of the offences which were before the Court as it would be an undue hardship to impose that fine surcharge in these circumstances. [ 50 ] In addition, the Crown also seeks a DNA order under subsections 487.051(1) and 487.051(2) of the Criminal Code as the break, enter and theft charges contrary to sections 348(1) (

b) of the Criminal Code are primary designated offences for that purpose. I have signed that order this afternoon. [ 51 ] Finally, the Crown Attorney seeks a stand-alone restitution order under

section 738 of the Criminal Code in respect of the insurance company in the amount of $4131.00. I am prepared to make that order on a form to be provided by the Crown Attorney, however, I wish to make it clear that it is a stand-alone restitution order and that I am not ordering any particular terms for the payment of that amount. Theodore K. Tax, JPC