2014 NBCA 4, 2014 NBCA 4

COURT OF APPEAL OF NEW BRUNSWICK COUR D’APPEL DU NOUVEAU-BRUNSWICK 32-12-CA THEODORE VINCENT SIMON APPELLANT THEODORE VINCENT SIMON APPELANT - and - - et - HER MAJESTY THE QUEEN RESPONDENT SA MAJESTÉ LA REINE INTIMÉE Simon v. R., 2014 NBCA 4 Simon c.

R., 2014 NBCA 4 CORAM: The Honourable Chief Justice Drapeau The Honourable Justice Quigg The Honourable Justice Green CORAM : l’honorable juge en chef Drapeau l’honorable juge Quigg l’honorable juge Green Appeal from a decision of the Provincial Court: December 22, 2011 (conviction) February 16, 2012 (sentence) Appel d’une décision de la Cour provinciale : le 22 décembre 2011 (déclaration de culpabilité) le 16 février 2012 (prononcé de la sentence) History of Case: Historique de la cause : Decision under appeal: February 16, 2012 (unreported) Décision frappée d’appel : le 16 février 2012 (inédite) Preliminary or incidental proceedings: N/A Procédures préliminaires ou accessoires : s.o.

Appeal heard: October 9, 2012 Appel entendu : le 9 octobre 2012 Judgment rendered: January 30, 2014 Jugement rendu : le 30 janvier 2014 Reasons for judgment by: The Honourable Justice Green Motifs de jugement : l’honorable juge Green

Concurred in by: The Honourable Chief Justice Drapeau The Honourable Justice Quigg Souscrivent aux motifs : l’honorable juge en chef Drapeau l’honorable juge Quigg Counsel at hearing: For the appellant: Theodore Vincent Simon appeared in person For the respondent: Cameron H. Gunn, Q.C. Avocats à l’audience : Pour l’appelant : Theodore Vincent Simon a comparu en personne Pour l’intimée : Cameron H. Gunn, c. r. THE COURT The application for leave to appeal sentence is dismissed. LA COUR La demande d’autorisation d’interjeter appel de la peine est rejetée. The judgment of the Court was delivered by GREEN J.A. I.

Introduction [ 1 ] The appellant was convicted by a judge of the Provincial Court on one charge of robbery under s. 344(1) (

b) of the Criminal Code , and one charge of aggravated assault under s. 268(1) . On the robbery conviction, the appellant was sentenced to seven years, less a credit of nine months for time spent in remand. On the aggravated assault, the sentence was five years, to be served concurrently. He was also prohibited from possessing a firearm for life. Mr. Simon now seeks leave to appeal his sentence. A Crown cross-appeal was abandoned prior to the hearing. For the reasons which follow, I would dismiss the application for leave. II.

Notice of Appeal [ 2 ] The Notice of Appeal issued March 14, 2012, indicated the appellant was appealing his convictions, and seeking leave to appeal the sentence. At the outset of his hearing, the appellant abandoned the conviction appeal, and chose to proceed on sentence alone. III. Background [ 3 ] The appellant concocted a scheme to rob an acquaintance, one Matthew King. He was familiar with Mr. King’s residence, having been there often to purchase drugs from Mr. King.

[ 4 ] On the day of the robbery, the appellant met his son, Colton Simon, who at the time was sixteen years old. The appellant invited his son to join him in carrying out his plan against Mr. King, and Colton Simon agreed. The two later met with a third individual, Daniel Stephen Ginnish, who also agreed to participate in the robbery. [ 5 ] The appellant outlined the details of his plan to the others, and gave specific instructions to his son on how the robbery was to be conducted. Colton Simon and Daniel Ginnish were instructed to wait five minutes before going to Mr. King’s residence, and once Mr.

King opened the door of his home, the two were to “beat him up”. The appellant told his son to place a rock in a pair of socks, and use this improvised weapon to hit Mr. King over the head. [ 6 ] Prior to arriving at Mr. King’s residence, Colton Simon armed himself with a rock placed inside a pair of socks, as his father had instructed. Mr. Ginnish was armed with a beer bottle, which he broke while en route to the house. [ 7 ] When the two assailants arrived at Mr. King’s residence, the appellant was already inside the home. Colton Simon knocked on the door, and Mr. King answered the knock.

Colton Simon struck Mr. King on the back of the head with the rock, and Mr. King was pulled outside. Colton Simon then struck Mr. King on the back of the head a second time. [ 8 ] For his part, Daniel Ginnish attacked Mr. King with the broken beer bottle, cutting him on the arm and the chest. While Mr. King was on the ground, the assault continued, with Colton Simon kicking Mr. King in the head, and Daniel Ginnish cutting him on the back with the broken bottle. Colton Simon then placed Mr. King in a choke hold, and Mr.

King said “I give up,” after which he was released. [ 9 ] At this point, the appellant exited the home. Colton Simon and Daniel Ginnish fled the scene of the attack. Colton Simon was arrested soon thereafter, and Daniel Ginnish and the appellant later. Mr. King’s injuries included a laceration on the back of his head, deep scratches on one arm and the side of his chest, and a V-shaped laceration on his back. [ 10 ] The appellant’s role, in addition to developing the plan and recruiting the others to join him in carrying it out, was to steal from inside Mr. King’s residence while the attack was going on.

The trial judge found the appellant was not a mere decoy, but an active participant in the robbery. IV. Issue [ 11 ] The appellant provided a single written paragraph to set out his grounds for appeal, most of which relates to his conviction. With respect to the sentence received, the essence of his argument is relatively straightforward: he believes seven years is excessive. Thus, the appellant challenges the fitness of the sentence imposed. V. Law and Analysis A. Standard of Review [ 12 ] The law on sentence appeals is well settled.

Appellate intervention is to be exercised cautiously, and only when specific criteria are met. Drapeau, C.J.N.B. set out the analytical framework for appellate review in sentencing matters in R. v. Steeves , 2010 NBCA 57 , 360 N.B.R. (2d) 88 : I begin by focusing, once again, on the standard of appellate review in sentencing matters and reiterating the elements of that standard that point to deference for the outcome in first instance.

I do so principally for the following reasons: (1) to reemphasize that corrective action on appeal in such matters is, as a practical matter, quite rare, a state of affairs that flows naturally from the very limited opening for principled appellate intervention; and (2) to provide guidance in relation to the nature of the complaints that might open the door to such intervention.

The jurisdiction of appellate courts on sentence reviews is delineated in s. 687(1) of the Criminal Code, which states: 687(1) Where an appeal is taken against sentence, the court of appeal shall, unless the sentence is one fixed by law, consider the fitnessof the sentence appealed against, and may on such evidence, if any, as it thinks fit to require or to receive, (

a) vary the sentence within the limits prescribed by law for the offence of which the accused was convicted; or (

b) dismiss the appeal. Thus, Parliament's instruction to appellate courts is, at least from a textual standpoint, relatively straightforward: it is the fitness of theimpugned sentence that stands to be considered. Numerous pronouncements emanating from the Supreme Court of Canada make plainthat the concept of "fitness" is not limited to an assessment of quantum. Indeed, courts of appeal may be required to consider whether the sentence imposed is lawful.

The most obvious illustration of unfitnessas a matter of law involves the sentencing judge's failure to comply with prescribed minimum or maximum punishments (see R. v. Wust,[2000] 1 S.C.R. 455, [2000] S.C.J. No. 19 (QL), 2000 SCC 18; R. v. Fice, [2005] 1 S.C.R. 742, [2005] S.C.J. No. 30 (QL), 2005 SCC32; and R. v. LeBlanc (D.) (2005), 279 N.B.R. (2d) 121, [2005] N.B.J. No. 21 (QL), 2005 NBCA 6). For other examples of sentenceappeals that turned on points of law, see R. v. Middleton, [2009] 1 S.C.R. 674, [2009] S.C.J. No. 21 (QL), 2009 SCC 21, R. v. Sinclair(1972), (ON CA), 6 C.C.C. (2d) 523, [1972] O.J.

No. 345 (QL) (C.A.), R. v. Robillard (1985), (QC CA), 22 C.C.C. (3d) 505, [1985] J.Q. no 353 (QL) (C.A.), R. v. Amaralik (1984), (NWT CA), 16 C.C.C. (3d) 22,[1984] N.W.T.J. No. 42 (QL) (C.A.) and R. v. Drost (1996), (NB CA), 172 N.B.R. (2d) 67 (C.A.), [1996] N.B.J. No.23 (QL). Of course, no deference is owed to the sentencing court's quantum selection when it is challenged on a point of law. Appellate courts may also be called upon to determine whether the contested sentence reflects a proper application of the principles ofsentencing. Most of those principles are now codified in

Part XXIII of the Criminal Code. It is axiomatic that, while great deference isowed to the sentencing judge's weighting of the relevant factors, correctness is the standard by which his or her understanding of thegoverning principles is reviewed on appeal. Finally, courts of appeal may engage in a consideration of the quantum itself. Here, once again, great deference is owed to the sentencingjudge's judgment-call.

The sentence under consideration will be at risk of variation if, and only if, it is a substantial and marked departurefrom the sentence customarily imposed for similarly situated offenders committing similar crimes. In sum, a court of appeal is not at liberty to substitute its view of fitness for that of the sentencing judge unless the sentenceimposed is the product of either an error of law or an error in principle, or unless it is clearly unreasonable (see R. v. Shropshire, (SCC), [1995] 4 S.C.R. 227, [1995] S.C.J. No. 52 (QL), at paras. 46-48; R. v.

Solowan, [2008] 3 S.C.R. 309, [2008] S.C.J.No. 55 (QL), 2008 SCC 62, at para. 16; R. v. L.M., [2008] 2 S.C.R. 163, [2008] S.C.J. No. 31 (QL), 2008 SCC 31, at paras. 14-15; andR. v. C.A.C. (2009), 349 N.R.B. (2d) 265, [2009] N.B.J. No. 342 (QL), 2009 NBCA 68 (Bell, J.A. for the Court, at para. 4)).

If thesentence at issue is the result of reversible error, the court of appeal bears the burden of prescribing the punishment that it considers fit in the circumstances. [paras. 19-25] To be successful, the onus is on the appellant to establish the presence of one or more of the above noted criteria: an error of law, anerror in principle, or that the sentence is clearly unreasonable. B.

Section 348.1 Aggravating Circumstance – Home Invasion [13] Parliament has seen fit to recognize the sanctity of one’s home through the enactment of s.348.1 of the Criminal Code, which provides as follows:

348.1 If a person is convicted of an offenceunder

section 98 or 98.1, subsection 279(2) or

section 343, 346 or 348 in relation to adwelling-house, the court imposing thesentence on the person shall consider as anaggravating circumstance the fact that thedwelling-house was occupied at the time ofthe commission of the offence and that theperson, in committing the offence, (

a) knew that or was reckless as to whetherthe dwelling-house was occupied; and (

b) used violence or threats of violence to aperson or property. 348.1 Le tribunal qui détermine la peine àinfliger à la personne déclarée coupable d’uneinfraction prévue aux articles 98 ou 98.1, auparagraphe 279(2) ou aux articles 343, 346 ou348 à l’égard d’une maison d’habitation esttenu de considérer comme une circonstanceaggravante le fait que la maison d’habitationétait occupée au moment de la perpétration del’infraction et que cette personne, encommettant l’infraction :

a) savait que la maison d’habitation étaitoccupée, ou ne s’en souciait pas;

b) a employé la violence ou des menaces deviolence contre une personne ou des biens. [14] The Court of Appeal for Saskatchewan considered the elements of a home invasion in R. v.Campeau, 2009 SKCA 3, [2009] S.J.

No. 16 (QL): […] s. 348.1 creates a specific aggravating circumstance which is to be taken into account in addition to all other aggravatingcircumstances, when imposing a sentence for the offence of unlawful confinement contrary to s. 279(2), robbery contrary to s. 343,extortion contrary to s. 346, or break and enter contrary to s. 348(1) (“the listed crimes”), if any of these offences are committed at or inrelation to a dwelling-house.

The essential elements of a home invasion are: (1) occupancy of a dwelling-house at the time one of thelisted crimes was committed; (2) knowledge or recklessness on the part of the offender as to whether the dwelling-house was occupied;and (3) actual or threatened use of violence to persons or property. […] [para. 24] [15] Campeau makes reference to an earlier decision of the same court, R. v. Pelly, 2006 SKCA 60,[2006] S.J. No. 332 (QL), in which Cameron J.A. forcefully underscores the seriousness with which the courts, and Canadian society as awhole, view incidents such as these.

I concur with his assessment, which he expressed as follows: It must be clear to all that crimes of this nature strike at the very core of a peaceful and safe society, violate the security of the home, andoften result in lasting physical and psychological injury. They are terrifying crimes, and it is imperative they be treated with the utmostseriousness in the interest of preserving public safety and upholding public confidence in the administration of justice.

So, all shouldknow that the courts of this province, in step with those of others, will come down hard on violent crimes entailing “home invasions” inorder to protect the public from the invasiveness and violence associated with them. [para. 57] [16] Our Court first considered the concept of “home invasion” in R. v. Joyce (1998), (NB CA), 203 N.B.R. (2d) 1, [1998] N.B.J. No. 312 (C.A.) (QL), and was equally forceful in its view of the seriousness of suchincidents: In my view, the instant case is exceptional because of the cumulative effect of the many aggravating factors which are present.

First and foremost, it involves a home invasion. In such a situation, deterrence must play a pivotal role in the sentence imposed: courtsmust respond with severity to the challenge posed by home intrusions in an era of easy access to addictive hard drugs. [paras. 36-37] [Emphasis added.]

[ 17 ] At the sentencing hearing, the Crown argued home invasion to be an aggravating circumstance which should be considered by the court in passing sentence on Mr. Simon. However, the sentencing judge determined this fact situation did not meet the definition of home invasion. Here is the pertinent passage in his decision: THE COURT: […] I agree with defence counsel that this was not a home invasion, nor was it tantamount to a home invasion. I don’t believe that the jurisprudence of home invasions applies to this case. I do consider as a factor in sentencing that Mr.

King was at his home when the robbery occurred, and also that the accused intended the assault to occur at his home. I believe this to be an aggravating factor. Mr. King should not have been attacked while he was at his residence, but he was pulled out of the home and he was attacked in the street, and for this reason I believe that this does not constitute what would otherwise be a home invasion. [pp. 45-46] [Transcript of Sentencing - Feb. 16, 2012] [ 18 ] With respect, I disagree with the sentencing judge’s conclusion. In my opinion, this was a home invasion.

The essential elements as required by the Criminal Code , and considered in cases such as Campeau , are all present. Although the main assault took place outside the victim’s home, that was only because his assailants pulled him outside once he had opened his front door. To suggest that if a victim opens the door to his or her home, is pushed backwards onto the floor, and is then further assaulted, it would amount to a home invasion, but if that same victim is instead pulled outside the home and subjected to the exact same assault with the exact same injuries, it would not be a home invasion, is not reasonable.

The appellant was in the victim’s home under false pretenses, for the express purpose of robbing him. The appellant’s accomplices were to conduct the attack, and thus provide the opportunity for the robbery to take place. As such, this was a home invasion, and on this point the sentencing judge was in error. C. Fitness of the Sentence Imposed [ 19 ] The sentencing judge made it clear he did not consider the facts before him to amount to a home invasion, but the appellant maintains he was sentenced as though the contrary finding had been made.

In other words, in spite of what was said by the Court, the appellant harbours the belief he was sentenced for a home invasion, and thus the sentence imposed is too harsh. I disagree: the appellant should have been sentenced on the basis that this was a home invasion, but he was not. [ 20 ] Prior to imposing sentence, the judge reviewed the purpose and principles of sentencing set out in s. 718 of the Code . He went on to outline each of the six objectives listed therein, and discussed the proportionality principle.

The sentencing judge then acknowledged the importance of s. 718.2( e ), which provides: Other sentencing principles 718.2 A court that imposes a sentence shall also take into consideration the following principles: […] (

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. Principes de détermination de la peine 718.2 Le tribunal détermine la peine à infliger compte tenu également des principes suivants : […]

e) l’examen de toutes les sanctions substitutives applicables qui sont justifiées dans les circonstances, plus particulièrement en ce qui concerne les délinquants autochtones. [ 21 ] The next step undertaken by the sentencing judge was to enumerate what he considered to be aggravating factors, of which he identified six:

1. The attack on the unsuspecting and unarmed victim was planned and deliberate. 2. There were two assailants involved in the attack, making it even more difficult for the victim to defend himself. 3. The attack was vicious and the injuries inflicted were serious. 4. Both assailants used weapons in the attack. 5. The appellant recruited his sixteen-year-old son, who had no prior criminal record, to take

part in the attack. 6. The appellant and Mr. Ginnish had extensive criminal records. In the case of the appellant, 59 criminal convictions in a recordspanning 20 years from May, 1991, to February, 2011. Particular note was made of the fact the appellant’s record disclosed eight priorconvictions involving violence. [22] When the sentencing judge turned his attention to the search for mitigating factors, he couldidentify none. The judge did, however, embark upon a detailed discussion of the appellant’s background as disclosed in the pre-sentencereport. He then cited the Supreme Court decision in R. v.

Gladue, (SCC), [1999] 1 S.C.R. 688, [1999] S.C.J. No. 19(QL), and considered the implications thereof for the appellant, who is an aboriginal person. [23] Upon giving due consideration to all of the above, the judge imposed a sentence of seven yearsin penitentiary on the robbery conviction, less a credit of nine months for time spent in remand. On the aggravated assault, the sentencewas five years, to be served concurrently. [24] In support of its position that the sentence is both fit and reasonable, the Crown has cited thisCourt’s decision in R. v.

Goulette, 2009 NBCA 49, 350 N.B.R. (2d) 152, wherein Richard J.A. reviewed the relevant jurisprudence forcases with similarities to the one presented here. [25] This Court’s decision in R. v. Basque (G.) (1999), (NB CA), 211 N.B.R.(2d) 273, [1999] N.B.J. No. 211 (QL), is also pertinent. In that case, the Court provided a clear statement of the law on the acceptablerange of sentences imposed in this jurisdiction for robbery.

The Court states: A review of the relevant case law quickly reveals that the sentence imposed in this case differs markedly and unreasonably fromsentences usually imposed for robbery and disguise with intent offences committed in circumstances similar to the ones in this case.Consequently, the sentence is not consistent with the principle of similar sentences for similar offences.

This court has recognized thatrobbery is a very serious offence and that Parliament has deemed fit to acknowledge this gravity by providing that everyone whocommits robbery is guilty of an indictable offence and liable to life imprisonment. Indeed, this court has approved a range of sentencesfrom three to eight years of imprisonment in a penitentiary for this offence when committed by someone other than a young offender.See R. v. Matthews (1983), (NB CA), 45 N.B.R. (2d) 265 (C.A.) at 268 and R. v.

Vautour (1987), (NB CA), 76 N.B.R. (2d) 389 (C.A.). [para. 30] [Emphasis added.] The sentence imposed in this matter falls squarely within this range, and cannot be said to be unreasonable. [26] In conclusion, none of the criteria enunciated in Steeves have been established. The only error tobe found in the sentencing judge’s decision, which was to conclude the facts of the case did not support a finding of home invasion, wasto the benefit of the appellant. The Crown chose to abandon its cross-appeal on the issue, and no more need be said with respect to s.348.1 of the Code.

The decision on sentencing was thoughtful, thorough, and fair. I find no scope for appellate intervention.

VI. Disposition [ 27 ] I would dismiss the application for leave to appeal sentence. ______________________________ BRADLEY V. GREEN, J.A. WE CONCUR: ___________________________________ J. ERNEST DRAPEAU, CHIEF JUSTICE OF NEW BRUNSWICK _________________________________ KATHLEEN A. QUIGG, J.A.