2011 MBPC 26, 2011 MBPC 26

Citation #2011MBPC26 March 25, 2011 THE PROVINCIAL COURT OF MANITOBA BETWEEN Her Majesty the Queen ) Mark Kantor, ) for the Crown ) - and - ) ) ) M.S.1 ) Aaron Seib, ) for the Accused ) ) Judgment delivered: ) March 25, 2011 CARLSON, P.J. Introduction [ 1 ] M.S.1 entered guilty pleas to two offences. Both arose from an incident that occurred on November 25, 2009, in Winnipeg. [ 2 ] M.S.1 pleaded guilty to robbery using an imitation firearm, contrary to section 344(1) (

b) of the Criminal Code , and to use of an imitation firearm in the commission of an indictable offence, contrary to section 85(2) (

a) of the Criminal Code . [ 3 ] The issue for the Court is to determine the appropriate sentence to be imposed on M.S.1 for these offences. To do so, the Court must consider the circumstances of the offences and of the offender, as well as mitigating and aggravating factors. Circumstances of the Offences [ 4 ] The facts upon which M.S.1 entered his guilty plea, and is to be sentenced are agreed by Crown and defence counsel to be the following. [ 5 ] On November 25, 2009, in the evening, M.S.1 and his brother M.S.2, along with an unidentified male, were in the area of the Merchant Hotel, in Winnipeg.

They met up with a 14 year old female, a Ms. Clarissa Lawrence, and they had some discussion with her about getting some marihuana and getting high. At about 10:30 p.m., the group went to a residence, a private dwelling house, located at B-63 McKenzie Street. M.S.2 knew one of the teenaged males who lived in the residence, B.P., and, according to M.S.1, they went specifically to that residence to buy some marihuana from B.P.. There were five people in the residence at the time, all of whom lived there.

These were Heather Desjarlais, aged 36, and her four children, K.P.. who was 18, B.P., who was 16, and two young children. The group of four knocked at the door of the residence. K.P. answered the door and let the group into the house. The group entered into the kitchen, where Ms. Desjarlais, K.P. and B.P. were. The two young children were sleeping in a bedroom upstairs. Immediately upon the group entering the kitchen, M.S.1 produced an imitation firearm, and M.S.2 produced a machete. M.S.1 brandished the imitation firearm and M.S.2 brandished the machete.

M.S.1, M.S.2 and the unidentified male all demanded money and drugs from the three residents in the kitchen, while M.S.1 pointed the imitation firearm at them. M.S.1 went to Ms. Desjarlais and pointed the imitation firearm at her head while making these demands. M.S.2 left the kitchen, and went running up to the room where the two young children were sleeping. He waved the machete around while he searched their room for drugs. K.P. got scared, and gave the group $90 in cash. The males also obtained a small amount of marijuana. K.P. was able to lure M.S.1 to the kitchen door, where he grabbed M.S.1 and disarmed

him. The imitation firearm fell and broke in half. K.P. was able to get M.S.1 outside the residence, where he and B.P. hit M.S.1. Thethree male offenders were able to escape, but the residents were able to detain Clarrisa Lawrence until police arrived. [6] B.P. knew M.S.2, as they attended the same school.

B.P.was able to identify both M.S.2 and M.S.1 by way of a photo pack. [7] The police obtained warrants for the arrest of the two M.S.1 brothers, located and arrested them. [8] M.S.1 gave a video statement and made admissions that put him at the scene. [9] There are a few important points to highlight about the circumstances of the offences. [10] First, when the firearm was seized by police, it was broken in half. There was a bullet in the chamber and five bullets werefound on the ground just outside the residence.

A report of firearms experts was not sufficient, in the Crown’s opinion, to establish that itwas a working firearm so as to meet the Criminal Code definition of a firearm. Accordingly, it is agreed that the firearm in question wasan imitation firearm. [11] Second, although the firearm used was an imitation, the residents did not know that during the incident. It looked like ahandgun. Ms.

Desjarlais and her two teenaged sons thought it was a real firearm. [12] Third, defence counsel says that M.S.2, M.S.1 and the other offenders went to the P. residence not with any plan or intent tocommit a robbery, but with the intention to buy some marijuana from B.P.. M.S.1 says that the group was let into the residence, theywere shown some marijuana, and it was at that point, on the spur of the moment, that M.S.1 decided to rob the residents of the marijuanaand cash, and that he and his brother pulled out their respective weapons to effect the robbery.

One might reasonably wonder why M.S.1and M.S.2 would be carrying offensive weapons to a residence if they did not have a plan to engage in criminal activity there ahead oftime. Defence counsel says that, given the circles the M.S.1 brothers move in, it is accepted practice to carry weapons.

That of course,does not make the carrying of weapons in any way acceptable or lawful, but that is M.S.1’ explanation for having the imitation firearm. [13] Since M.S.1 has pleaded guilty to a robbery simpliciter, and the Crown has not called evidence to prove that the robbery wasplanned before they entered the residence, I must for the purpose of sentencing M.S.1, accept his version of the facts, specifically thatthere was no preconceived plan to commit a robbery before entering the residence, and that the decision to commit the robbery was madeimmediately after entering the residence. [14] Further, the set of facts M.S.1 has pleaded guilty to do not include a break in to the residence.

The facts he has admitted to arethat he and his co-offenders were let in, or invited into, the residence by one of the residents. There was no forced entry. Circumstances of the Offender [15] M.S.1’ lawyer provided information about M.S.1’ personal circumstances. [16] M.S.1 is an aboriginal offender.

Section 718.2(

e) of the Criminal Code requires that the Court, on sentencing, take intoaccount the principle that: “all available sanctions other than imprisonment that are reasonable in the circumstances should be considered for all offenders, withparticular attention to the circumstances of aboriginal offenders”. [17] I did canvass with counsel whether a Gladue report should be prepared with respect to M.S.1. Counsel requested therequirement for a Gladue report be waived.

Defence counsel was able to provide the court with information about M.S.1’ homecommunity of Sandy Lake First Nation Territory in Ontario, and information relative to M.S.1’ family of the type that would be expectedto be in a Gladue report. The Supreme Court of Canada has said in R v. Wells, 2000 SCC 10 , [2000] 1 S.C.R. 207, that where anoffence involves violence and a firearm there is “little difference in penalty between aboriginal and non-aboriginal offenders”. Given theserious nature of these offences, there are no sanctions other than imprisonment that are reasonable in the circumstances.

Accordingly,Gladue factors, though providing some context, would not operate to reduce the sentence for M.S.1. In the circumstances, I indicated Iwas prepared to waive the requirement for a Gladue report. [18] M.S.1 is twenty six years old now. He was twenty five years old at the time he committed these offences. He comes fromSandy Lake First Nation Territory, a remote community. He was exposed, as a child, to domestic violence by his father toward hismother, and toward himself, and to substance abuse.

His parents separated when he was fourteen years old, at which time his mothercame to Winnipeg and he stayed in Sandy Lake with his father. He was not well cared for by his father, and was basically left to raisehimself. Defence counsel says that a number of the break and enter convictions on his youth record were committed in an effort toobtain food, or items he could sell to fuel his own addictions. He started using substances when he was thirteen, including alcohol andmarijuana. Starting at age fourteen, he would drink alcohol to the point of passing out or blacking out.

He has only gone to substanceabuse treatment once, when he was fifteen, to the Selkirk Healing Centre. He has a grade seven education. M.S.1 came to Winnipeg,and had been in Winnipeg for only twelve days, when the robbery he is now being sentenced for took place. He and his brother, M.S.2,had come to Winnipeg to see M.S.2’ young child in the hospital. The child had a heart defect, and sadly, died. I am advised by defencecounsel that M. and M.S.1 reacted to this event by consuming alcohol to excess, and had been doing so for two to three days prior to therobbery.

M.S.1 apparently has plans to return to his home community in due course. He is not currently in a relationship, but does have

four young children. While he has been in custody, at the Headingly Correctional Institution, he has completed a five day substance abuse informational program, and an anger management workshop. Mitigating and Aggravating Factors [ 19 ] There are some mitigating factors here. These are things that are to the credit of M.S.1 and must be considered as factors that would tend to decrease the length of an appropriate sentence. • He has entered guilty pleas. He did so on the date his preliminary inquiry was to begin. As a result of his guilty pleas, the complainants did not need to testify.

His guilty plea is an expression of his acceptance of responsibility for the offences. • He apologized to the Court for his actions and did express remorse at the conclusion of his sentencing hearing. • He is a young man still, being only twenty six years old. • There were no actual physical assaults perpetrated on the victims. • There were no physical injuries inflicted on the victims. • The incident was not a lengthy one, and two of the residents ultimately got the upper hand, forcing the male offenders, including M.S.1, out of the residence. . [ 20 ] Alcohol was a factor in his committing the offences.

That is not a mitigating factor, although it does provide some context. [ 21 ] There are many aggravating factors in this case.

These factors will increase the length of an appropriate sentence: • This incident occurred inside the home of the victims. • There were people home in the residence at the time, namely five residents, including two young, sleeping children. • M.S.1 clearly knew there were people in the residence before he produced his weapon and initiated the robbery, as he and his associates were let in by one of the residents and he saw that there were three people in the kitchen. • The offence was perpetrated immediately once the group of offenders was inside, on unsuspecting, unarmed and defenceless victims. • There was no provocation of any of the residents to incite the robbery. • Weapons were produced and brandished.

M.S.1 pulled out what the victims thought was a real firearm immediately upon entering the residence and brandished it around. His brother pulled out and brandished a machete. • M.S.1 pointed the firearm at the three victims in the kitchen. The victims all thought the firearm was real. • M.S.1 held the firearm, thought by Ms. Desjarlais to be real, to her head while he demanded drugs and money. This must have been terrifying to Ms. Desjarlais as she would reasonably have thought that M.S.1 may pull the trigger, and kill her.

Even though the victims were not tied up, or locked in a room within the house, they were definitely confined. They were prevented from leaving due to the threat, presented by the brandishing of the weapons, of grievous bodily injury or death. The victims were, during the robbery, confined in their own home, a place in which they were entitled to feel safe. • M.S.2 went to the young children’s bedroom while they were sleeping, and searched their room while brandishing about the machete. I did not receive any information about the effect this incident has had on the children in that room.

One can only imagine if the children had awakened (and I do not know if they did), how terrified they would have been, what potential harm may have been caused, and the potential and long lasting emotional harm that may have been caused. • Perhaps just as terrifying is what Ms.

Desjarlais must have been feeling as she saw M.S.2, brandishing the machete, head upstairs to where her young children were sleeping. • At no point did M.S.1 withdraw from the offence. • Although the victims declined to provide victim impact statements, there is no doubt that being subjected to the events perpetrated by M.S.1 and his co-offenders will have some, and no doubt, a significant, long term negative effect on the victims. • M.S.1 was subject to a ten year firearms prohibition at the time of these offences. • M.S.1 has a lengthy and related record, including seven convictions for prior break and enter offences, five as a youth and two as an adult.

As a youth, he also had a conviction for each of a breach of sentence, escaping lawful custody, a theft under $5000 and an arson. As an adult, he also has convictions for assault and two breaches of undertaking. His most recent convictions are for robbery,

assault with a weapon and two breaches of undertaking, from October 30, 2008, for which he was sentenced to 96 days time in custody and 6 months, concurrent, plus a ten year firearm prohibition. Purpose and Principles of Sentencing [ 22 ] The fundamental purpose of sentencing is to contribute to respect for the law and the maintenance of a just, peaceful and safe society.

Section 718 of the Criminal Code requires courts to structure sentences that attain that purpose by addressing certain objectives. These include denunciation, specific and general deterrence, rehabilitation, separation of offenders from society to protect the public where necessary, reparation to victims or the community and promotion of responsibility of offenders and acknowledgement of harm. [ 23 ] A sentence must be proportionate to the gravity of the offences and the degree of responsibility of the offender. Here the offence is at the extremely grave end of the spectrum of offences.

M.S.1, although there were others involved, bears responsibility for the totality of the circumstances of the offences. [ 24 ] Rehabilitation is always an important objective of sentencing, particularly in cases where offenders are relatively young and, if given the benefit of resources, may turn their lives around. [ 25 ] However, given the nature of these offences, the sentencing objectives of denunciation, deterrence and separation of the offender from society to protect the public, must be paramount in terms of sentencing principles to be considered. [ 26 ] The incident perpetrated by M.S.1 and his co-offenders is a type of offence that is feared by law abiding members of the community.

People believe, and are entitled to believe, that they will be safe within the confines of their own homes. The threat of having the sanctity of one’s own home compromised by being robbed at gunpoint in one’s own kitchen is terrifying. The idea of having one’s children’s terrorized by someone running into their room while they are sleeping and waving a machete, is most people’s worst nightmare. The community at large, the law abiding citizens who are entitled to expect to be safe from violence in their own homes, needs to see that offences such as these ones will be severely sanctioned.

The community of offenders who are inclined to behaviour such as M.S.1 exhibited in committing these offences, need to see that if they commit like offences, they will be going to jail for a very long time. Hopefully, that threat of a substantial period of incarceration, set by example in a case like this, will deter them from carrying out similar offences. The sentence needs to be significant enough that M.S.1 himself will be deterred from committing a similar offence in the future, for fear of returning to jail for a long time.

A strong message of denunciation needs to be sent by M.S.1’ sentence, to demonstrate that actions like his will simply not be tolerated in our community. Positions on Sentence [ 27 ] There is not a joint recommendation as to sentence. [ 28 ] The Crown argued that the offences committed by M.S.1 were, or were equivalent to, a home invasion robbery, and that a sentence for M.S.1 should fall within what has been established by authorities as a generally accepted range of sentence for a home invasion robbery, of seven to ten years incarceration.

The Crown says further, given M.S.1’ prior related criminal record, and the aggravating circumstances of these offences, the appropriate global sentence for M.S.1 is ten years imprisonment. [ 29 ] Defence counsel says that the offences committed by M.S.1 were not, and were not equivalent to, a home invasion robbery, and that the range of sentence generally accepted for a “home invasion” offence does not apply here. Defence counsel says these offences constituted a robbery, and the fact the robbery occurred inside a residence is an aggravating factor.

Defence counsel urges the Court to impose a sentence in the range of three and a half to four and a half years in prison. [ 30 ] Both counsel agree that M.S.1 should receive double credit for the time he has spent in custody, pre- sentence. The commission of these offences preceded the recent Criminal Code amendments that now preclude double credit as the norm. M.S.1 has been in custody since November 27, 2009. That is one year and nearly four months. At double credit, that time is equivalent to two years, and eight months.

Defence counsel says that due to credit for time in custody, if a sentence equivalent to the time he suggests is imposed, a lengthy probation order could be imposed to follow M.S.1’ release. The Law [ 31 ] There is no specific offence of “home invasion” in the Criminal Code . [ 32 ] Why, then, is it important whether or not the offences to which M.S.1 has pleaded guilty, constitute a “home invasion”? [ 33 ] If they do, then it is likely that a sentence in the range that has been established as being generally applicable to such offences will be appropriate for M.S.1.

If they do not, but they are “equivalent to” or analogous to a home invasion, then it is also likely a sentence in the same range will be applicable.

[34] The Alberta Court of Appeal set range for sentencing for a home invasion robbery in R. v. Matwiy (1996), 1996 ABCA 63, 105 C.C.C. (3d) 251. That Court set out a number of factors that are the “basic, essential features of a ‘home invasion’robbery”, at pages 263-264. These are, where a person: “(

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

b) arms himself or herself with an offensive weapon; (

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

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

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

f) steals or attempts to steal money or other valuable property.” [35] In R. v. Matwiy three men committed a home invasion robbery when they broke into a residence, used weapons including aloaded gun, threatened to kill the occupants of the home, and took money. The Alberta Court of Appeal used the R. v. Matwiy case todevelop guidelines for sentencing in home invasion robberies. By the term “home invasion robberies”, the Crown intended “those inwhich the culprits selected the residence because they thought that there was something of value inside (at page 256).

The Alberta Courtof Appeal was of the view that a home invasion robbery deserved a higher starting point sentence than the armed robbery of acommercial institution. The Alberta Court of Appeal decided that a starting point sentence for such an offence was eight yearsincarceration for an accused who is mature with no prior criminal record. [36] The Manitoba Court of Appeal followed the Matwiy decision in R. v. Ross. (P.S.) (1999), (MB CA), 138Man. R. (2d) 75, and found a seven to ten year range was the appropriate sentence for a serious home invasion.

In that case, a nineteenyear old offender with a serious youth record, broke into the victims’ home in the middle of the night while they were sleeping, pointed arifle at them while demanding money, tied them up and stole their vehicle. He wore a disguise, and made comments to one of thevictims, leading that victim to believe he was going to die. He put the rifle to the head of one of the victims and pulled the trigger twice. The gun did not fire. The Manitoba Court of Appeal imposed an eight year sentence. [37] In 2002 the Criminal Code was amended to add

section 348.1, which provides that: “348.1 Aggravating circumstance – home invasion – If a person is convicted of an offence under any of subsection 279(2) or sections343, 346 and 348 in relation to a dwelling – house, the court imposing the sentence on the person shall consider as an aggravatingcircumstance the fact that the dwelling –house was occupied at the time of the commission of the offence and that the person, incommitting the offence, (

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

b) used violence or threats of violence to a person or property.” [38] There are at least six Manitoba Court of Appeal decisions released after R. v. Matway and R. v. Ross (P.S.) that have addressedthe issue of sentencing an offender for home invasion “type” of offences, namely the offence of breaking and entering into a dwellinghouse that is occupied and the commission of an indictable offence in the dwelling house. These are R. v. Hill (G.A.) (MB CA), 2000, 142 Man. R. (2d) 314; R. v. Pakoo (K.G.), 2004 MBCA 157; R. v. Turtle, 2006 MBCA 148; R. v. Reader (M.), 2008MBCA 42; R. v.

Sinclair 2009 MBCA 91 and, most recently R. v. McCowan (K.J.), 2010 MBCA 45. [39] In R. v. Sinclair, the offender committed a break and enter into a residence, and commit an aggravated assault on a victiminside. It was not a robbery. The Court of Appeal referred to the fact that a sentence of seven to ten years was an appropriate range for“home invasion type” offences. An eleven year sentence was upheld. [40] In R. v. Hill, the offender committed two break enter offences, and committed aggravated assaults and forcibly confined thevictims. It was not a robbery, and the case did not specifically refer to R. v.

Matwiy or to “home invasion”. The facts were horrific, andworse than in the case of M.S.1. An eleven year sentence was upheld.

[ 41 ] R. v. Reader was a case of two home invasion robberies, both with very disturbing facts. The Manitoba Court of Appeal referred to the fact it had found that a range of seven to ten years for one serious home invasion offence is appropriate, and specifically referred to the R. v. Pakoo case (which was not a robbery). In R. v. Reader , a sentence of nine and a half years was imposed for one home invasion robbery, and five and a half years was imposed for the second (which, it was noted, was reduced for totality). [ 42 ] R. v. Pakoo and R. v.

McCowan were both cases in which the offence was break and enter and committing indictable offences other than robbery (specifically assault cause bodily harm in R. v. Pakoo , and aggravated assault in R. v . McCowan ). [ 43 ] In R. v. Pakoo , there was a break in by an offender at the residence of his former common law spouse. He was armed with a rifle. His ex spouse, her boyfriend and her children were present. He discharged the rifle in the same room as an 11 year old child and then tried to fire it in the direction of the spouse and the boyfriend. The rifle jammed so it did not fire.

He beat the boyfriend, thereby causing serious physical injuries. He caused some injuries to the ex spouse. This was found to not be a “home invasion” per se , because there was no robbery. However, the Manitoba Court of Appeal said that “…for all practical purposes it amounts to the same thing.” (paragraph 35). Specifically Justice Freedman held that although R. v.

Pakoo was not a “home invasion robbery”, the circumstances of the offence were so serious that “if seven to ten years is the realistic range for a serious home invasion robbery, I can see no logical reason why that should not also be a suitable range for the collection of serious offences before us here.” (at para. 42). [ 44 ] Justice Freedman did note that the range is a guideline only: “…but, as Scott C.J.M. said in Ross , “There will undoubtedly be circumstances where the appropriate and fit sentence for a home invasion robbery could be higher or lower than the usual range of sentence” (at para 14).

That same qualification applies to offences that are not, but that closely resemble, home invasion robberies” (para 42). [ 45 ] The offender had no criminal record. He had a long employment history, was supporting his children and had significant community support. After the offence, he had entered Alcoholics Anonymous and was doing well. The Court of Appeal said that while it did not satisfy all the criteria of a “home invasion” it was at least analogous to a home invasion and the same sentencing principles applied. [ 46 ] Freedman J.A. said that the aggravating factors in R. v.

Pakoo would likely push the sentence towards to the top of the seven to ten year range. However, because there were powerful mitigating factors, that ultimate sentence had to necessarily fall somewhere below the bottom of the range. A sentence equivalent to five years, eight and a half months was imposed. The Court said that the three year sentence imposed by the sentencing judge was so far below the bottom of the range that it gave no credence to his finding there was a range; further it gave inadequate recognition to the principles of denunciation and deterrence. [ 47 ] In R. v.

McCowan , the offender scaled the outside of an apartment block, broke into the victim’s apartment, entered the bedroom, found his wife in bed with the victim and punched the victim a number of times in the face. The victim suffered serious injures that left him permanently disabled, including traumatic brain injury. There were a number of aggravating factors. The offender had a positive pre-sentence report. His prospects for reintegration is to society were good. No weapon was used. The Court of Appeal referred to the “home invasion” range set down by R. v.

Matwiy , but made the following comments: “I believe it can be misleading to apply the range developed for home invasion robberies’ too rigidly without taking careful account of the nuances in the facts of each case………..they [sentencing ranges] are nothing more than guidelines and are certainly not conclusive of the appropriate sentence in any given case.” (para 11) [ 48 ] The Court in R. v. McCowan did not specifically whether this was analogous to a home invasion or not, but made the comments above about looking at the facts of each case.

Ultimately the Court of Appeal upheld the effective sentence of five and a half years, though said it was on the low end of the rage. [ 49 ] In R. v. Turtle , the offence was a break and enter into a dwelling house involving some violence (the appellate decision does not state the exact offence, nor any of the facts or circumstances of the offender, and the lower decision does not appear to be reported). The Manitoba Court of Appeal upheld a forty two month sentence, although stated it was at the low end of the range.

The Court of Appeal did not use the seven to ten year sentencing range, on the basis that even though there was a break and enter of a dwelling house that included violence, it was not, in that case, a “home invasion”. Scott C.J.M. stated, at paragraph 3: “Much was made by both counsel of the distinctions or similarities between this case and the recent decision of this court in R. v. Pakoo (K.G.) , … There are in fact numerous differences, the youth of the offender here being but one example.

But the most important distinction is that Pakoo was in all respects but one – the lack of an intent to rob – a home invasion. This case is not, the lack of premeditation and the absence of entry with a weapon being the key distinguishing features.” [ 50 ] The R. v. Turtle decision is important because it finds that a lack of premeditation and absence of entry with a weapon were sufficient to take an offence inside a dwelling house out of the “home invasion” category, even when it did include a break and enter and violence.

[51] When one considers these Manitoba Court of Appeal cases, what seems to put a case in the category of a home invasion typeoffence to which the sentencing range of seven to ten years will be applicable is the commission of an indictable offence (which couldbe, but is not necessarily, a robbery) plus two other important elements. These are a “break in” or forcible entry into a residence,generally with a weapon, and having a premeditated plan to commit an indictable offence. Indeed, the Manitoba Court of Appeal, in theR. v.

Turtle case, specifically said that the absence of those two elements took the offence out of the category of a “home invasion”. [52] I note the comments made by the Saskatchewan Court of Appeal in R. v. Campeau (2009), 2009 SKCA 3 , 245 C.C.C.(3d) 258. In that case, an offender was convicted of breaking and entering and committing assault in a residence. Although the Crownwas seeking a seven to ten year sentence on the basis this was a “home invasion”, the Court of Appeal upheld a four year sentence.

TheSaskatchewan Court of Appeal said at paragraph 24: “The submissions made by the parties suggest that uncertainty exists as to whether a home invasion with in the meaning of s. 348.1 issynonymous with a “home invasions robbery”. Simply put, it is not…” [53] In R. v.

Campeau, the Saskatchewan Court of Appeal said that each case of “home invasion” as described in s. 348.1 must bedecided on its own facts, having regard to the motive for entering the dwelling house, the degree of violence used and the nature of theoffences committed inside the residence. [54] In the offences committed by M.S.1, based on the facts agreed to, there was no break in or forced entrance into the residence,and there was no premeditated plan made prior to entering the residence, to commit a robbery. Although the other features of a “homeinvasion robbery” set out in R. v.

Matway, were present, the absence of those two factors would seem to take it out of the category of a“home invasion” or “home invasion type” of offence to which the seven to ten year sentencing range necessarily applies. [55] Accordingly, I find that it was not a “home invasion robbery” that M.S.1 committed, nor an offence sufficiently analogous to a“home invasion” type of offence, that the seven to ten year range necessarily applies. [56] That of course does not mean, in and of itself, that a seven to ten year range is not appropriate here.

The Court must look, as Istated previously, at the circumstances of the offence and the offender and the mitigating and aggravating factors to determine anappropriate sentence.

A comparison of all those circumstances and factors to the circumstances and factors of other cases is key, inorder to determine what an appropriate sentence is for M.S.1. [57] I have not been referred to, and indeed I could not find, any cases on point with the facts in this case, namely where an armedrobbery occurs inside a home, but does not have the element of a break in or forced entry, and was not initiated with a premeditated planto commit the robbery. [58] Defence counsel filed cases that I have considered. In R. v. Guiboche [2009] M.J. No. 334 (Man.

C.A.) a three year sentencewas imposed for two commercial break and enters, one count of using an imitation firearm in the course of a robbery and one count ofbreach of recognizance. In R. v. Rey [2002] M.J. No. 321 (Man. Prov. Ct.), upheld by the Manitoba Court of Appeal at [2002] M.J. No.26, an offender was sentenced to thirty months for robbing a bank, while pointing a firearm, and while disguised. In R. v. C.F. [2005]M.J. No. 377 (Man.

Q.B.), an offender was sentenced to 21 months of custody for robbing a gas station armed with a pellet gun. [59] These cases are of limited assistance because they are robberies of commercial, rather than of residential premises. [60] A sentence for an armed robbery in a residence with the residents present will need to be higher than a robbery of commercialpremises, given

section 348.1 of the Criminal Code. In Matwiy, the Alberta Court of Appeal made the general comment at page 263: “…While offences of violence are abhorrent wherever they occur, offences which strike at the right of members of the public to thesecurity of their own homes and to freedom from intrusion therein, must be treated with the utmost seriousness.” [61] Defence counsel did file one case that was a home invasion robbery case. In R. v. Shirley [2009] O.J. No. 2388, the offendercommitted a true home invasion robbery. He and another person entered a private home uninvited. They had their faces masked.

Theoffender said to the two people in the residence “this is a robbery, get down on the floor”. One of the persons in the home was hit by theco accused with a hockey stick. The offender was nearly immediately apprehended by the homeowner and held for police. He had arecord and the pre sentence report was not good. He was 23 years old. The Crown asked for a sentence of seven to eight years ofimprisonment.

The Court imposed a total sentence equivalent to twenty one months, specifically twelve months for attempt break andenter and twelve months for robbery, concurrent, and three months each for the assault with weapon, having his face masked andcarrying a concealed weapon, those three sentences consecutive to each other, and to the twelve month sentences on the other offences,plus probation for one year.

The judge in imposing that sentence made reference to the fact the home invasion was ill conceived andpoorly executed which showed the lack of sophistication and relative danger posed by the offender, and also stressed the principle ofrestraint for a young and immature offender. The judge in that case did not refer to the Matwiy decision. [62] I find the circumstances of the case before me are more serious than those in the R. v. Shirley case.

M.S.1 had an imitationfirearm, which the victims reasonably assumed was real, it was waved at them and directly pointed at the head of one victim, and therewere sleeping children in the residence into whose room one of the offenders went, waving his machete. In any event, I am not bound bythe R. v. Shirley decision. A sentence of the duration imposed in R. v. Shirley is not, in my view, anywhere close to what is required toachieve the principles and purpose of sentencing in the case of M.S.1. [63] I note the case of R. v. Curtis [1999] M.J. No. 427 (Man. Prov. Ct.).

This was a break in by an offender into a next doorneighbour’s house, theft and aggravated assault with a knife for robbery purposes by an accused with lengthy record. The judge saidthat what occurred was not “a home invasion case as envisioned by the case law” (at para 57) but that it was “the type of break in that

everyone has reason to fear just as much as a home invasion”. A sentence of eight years was imposed. [ 64 ] I must consider the principle of parity of sentencing, that is, that a sentence should be similar to sentences imposed on similar offenders for similar offences committed in similar circumstances ( s. 718.2 (

b) of the Criminal Code ). I am advised that the co-accused in this matter, M.S.2, received a sentence equivalent to three years of custody and community supervision for the offences. He was a young person at the time of the offences, and was sentenced under the Youth Criminal Justice Act (“YCJA”). I do not know what M.S.2’ circumstances are, nor what facts were agreed to for that sentencing. I am advised that the sentence of three years was a joint recommendation. I do note that three years is the maximum sentence available for the offence under the YCJA.

Also the sentencing principles under the YCJA are different than under the Criminal Code . The YCJA objectives are to give the offender meaningful consequences for his actions and to provide resources for rehabilitation of the young offender. Denunciation and deterrence are not to be considered in sentencing young persons under the YCJA .

Accordingly, trying to strike parity as between the sentence given to M.S.2 and the appropriate sentence to be given to M.S.1 is really like comparing apples to oranges, and is not that helpful for my purposes. [ 65 ] Even though I have found that this case is not, per se , a home invasion robbery case, and that it is not analogous to a home invasion (like R. v.

Pakoo ) because of the lack of forced entry and premeditated plan to commit an indictable offence prior to attending at the residence, when I compare the facts of this case, and the circumstances of M.S.1 to the facts of the cases I have referred to, and the circumstances of the offenders in those cases, I find that there are many similarities – including that the offence took place in a home, there were people in the house known to the offender, weapons were produced and brandished and used in a threatening way –such that the sentences imposed in those cases, notwithstanding any label they are given as “home invasion” or “not home invasion” must be somewhat comparable to what M.S.1 should receive.

Indeed, I have to say that although the absence of a break in and a premeditated plan to rob take this case out of a “home invasion” type of case, the overall circumstances are really no less egregious than those in many of the cases I have referred to in which substantial sentences were imposed. [ 66 ] The aggravating factors in this case, even when balanced against the mitigating factors, require a substantial penitentiary sentence in order to adequately address the sentencing principles of denunciation and deterrence. [ 67 ] There are not the significantly mitigating factors present in M.S.1’ case as there were in the R. v.

Pakoo case. [ 68 ] Having said that, this case does not have facts that make it the “worst case” robbery scenario. This was horrific and terrifying for the residents, but there was no break in or forced entry; no disguises were worn by the offenders; weapons were not used to cause injury; there were indeed no injuries; the incident was of a relatively short duration; and the residents were ultimately able to get the offenders out of the house.

Decision [ 69 ] In all of the circumstances of these offences, and of M.S.1, and when I compare the aggravating and mitigating factors to those in the various other cases I have considered, and bearing in mind M.S.1’ prior and very related criminal record, I have determined an appropriate sentence for the robbery to be six years imprisonment.

M.S.1’ time in custody, at double credit, equivalent to two years and eight months will be noted on the robbery offence, and the sentence going forward will be three years and four months. [ 70 ] The mandatory minimum sentence for use of an imitation firearm in the commission of an indictable offence of one year will be imposed. This takes into account the principle of totality and the fact that the use of the imitation firearm is a significant aggravating factor already taken into consideration in coming to the six year sentence on the robbery.

The one year sentence will be consecutive to the robbery sentence, in accordance with section 85(4) of the Criminal Code . [ 71 ] That means that overall the court is imposing sentences equivalent to seven years of incarceration. Taking into account the time M.S.1 has already served, he has a total of four years and four months left to serve. [ 72 ] The robbery offence is a primary designated offence as defined in

section 487.04 (

a) of the Criminal Code , and as such I order, pursuant to

section 487.05 of the Criminal Code , that within thirty days of today M.S.1 provide a sample of his bodily substances for submission to the national DNA data bank. [ 73 ] Both offences for which M.S.1 is being sentenced require that weapons prohibitions be made pursuant to

section 109 of the Criminal Code . M.S.1 was already made subject to a ten year firearms prohibition when he was convicted of robbery on October 30, 2008. Since this will be his second firearms prohibition, the prohibition will be a lifetime one. Accordingly, M.S.1 is prohibited from possessing any firearm, cross-bow, restricted weapon, ammunition, and explosive substance for life. That prohibition is imposed with respect to each of the two offences. [ 74 ] Further, pursuant to

section 743.21 of the Criminal Code , M.S.1 is prohibited from communicating, directly or indirectly, with Heather Desjarlais, K.P. and B.P. while he is serving his sentence. [ 75 ] Costs and surcharge are waived since M.S.1 will be in custody for some time further, and has no means to pay. “ORIGINAL SIGNED BY:” CARLSON, P.J.