R. v. David, 2012 MBPC 79

CITATION: R. v. David , 2012 MBPC 79 Date: 2012 11 30 IN THE PROVINCIAL COURT OF MANITOBA BETWEEN: Her Majesty the Queen ) Michael G. Himmelman ) for the Crown ) and ) ) ) Christopher Ryan David ) Aaron J. Braun ) for the Accused ) ) ) ) Reasons for Decision delivered: ) November 30, 2012 ALLEN P.J. [ 1 ] Mr. David has entered guilty pleas to robbery with a firearm

section 344 (

a) of the Criminal Code and to CDSA 5(2) possession for the purpose of trafficking. These charges arise from the invasion of the home of Alvin Flett and Dorothy Davis on February 9, 2012, in Winnipeg, Manitoba. [ 2 ] The matter was put over for sentencing to September 20, 2012. After hearing argument, I reserved judgment to consider counsels’ submissions. What follows are my reasons for decision. FACTS: [ 3 ] On February 9, 2012, just before midnight, Mr. David and two accomplices, while masked with balaclavas, forced their way into the residence of Mr. Flett, aged 79, and his wife, Ms. Davis, aged 78.

One of the intruders carried a sawed-off 22 calibre rifle, another carried bear spray and Mr. David had a foot-long screwdriver. [ 4 ] One of Mr. David’s accomplices struck Mr. Flett with the barrel of the rifle. While one accomplice remained with the home’s occupants, Mr. David and one of the other involved persons, went to the upper floor of the home. These two individuals eventually found a quantity of marijuana in the bedroom of the couple’s absent grandson. Before leaving, the invaders damaged all three of the phones in the home to prevent the victims from calling for help.

The trio subsequently left the house, taking with them approximately 580 grams of marijuana taken from the grandson’s room. Court was told that the value of the marijuana would be somewhere between two and three thousand dollars. [ 5 ] The intruders had transported themselves both to and from the scene of this incident in a vehicle that had been obtained for this purpose by Mr. David. [ 6 ] The police subsequently tracked the vehicle to a house in another part of Winnipeg. At some point police put this residence

under surveillance and observed Mr. David leave the house carrying a black bag. He was subsequently arrested by police and the bag was found to contain the stolen marijuana. [ 7 ] Within a day of his arrest, Mr. David admitted that he and his accomplices had planned to break into the Flett/Davis house for the purpose of stealing drugs and later trafficking those drugs. [ 8 ] It was later reported by Mr. Flett that as a result of being struck by the rifle, he had suffered a broken collarbone which led to diminished capacity and has continued to preclude him from following his usual pastimes. Ms.

Davis reports that she was not physically hurt, but that she was “pretty shaken up by the incident”. [ 9 ] It is conceded by counsel for Mr. David that the circumstances of this event bring it within the guidelines of

section 348.1 of the Criminal Code , which says that if a person is convicted of an offence under

section 348 in relation to a dwelling house, the court imposing the sentence on the person shall consider as an aggravating circumstance the fact that the dwelling house was occupied at the time of the commission of the offence and that the person, in committing 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. [ 10 ] Counsel for Mr. David denies that Mr. David and his accomplices knew the residence was occupied, but concedes that they were reckless as to whether it was. He also concedes that the circumstances of this event place it within the parameters of this

section and make this event, as described by both counsel, “analogous to a home invasion”, even though his plea is not, per se, to the enumerated offence. [ 11 ] I am told by both counsel that they have reached an agreement as to sentencing on a joint recommendation for a jail sentence somewhere in the range between seven and nine years. Counsel for Mr. David suggests the lower figure, while counsel for the Crown suggests the higher number.

PRINCIPLES OF SENTENCING: [ 12 ] For this matter, as with any imposition of criminal sentencing, the court must be guided by the sentencing principles as set out in the Criminal Code of Canada . These principles include denunciation of unlawful conduct; deterrence both specific to the offender and general to the population at large; where required the separation of the offender from society; rehabilitation of the offender; reparation to victims and the community; and promotion of a sense of responsibility in the offender and acknowledgement of the harm done.

Counsel in this case accepted that due to the nature of this charge and Canadian case law, the principles of denunciation and deterrence should receive particular prominence. [ 13 ] Additionally, the Criminal Code instructs that the fundamental rule of sentencing is that the sentence imposed be proportionate to the gravity of the offence and the degree of responsibility of the offender. [ 14 ] It is clear that this crime is particularly grave. As earlier stated, the Criminal Code at

section 348.1 sets out that when a home is occupied when it is broken into and a robbery takes place, these facts are to be considered aggravating. [ 15 ] The invasion of the privacy of one’s home combined with violence and robbery can only be looked at as a particularly serious event. The offender’s responsibility in this case is as full and as complete as that of his accomplices. He secured a vehicle to use in the plan. He obviously participated in the planning of the event. He was present when the homeowner was assaulted with the rifle.

He searched the house, left with the stolen drugs and was later arrested in possession of the stolen marijuana. [ 16 ] It is also required by the sentencing principles in the Criminal Code that the sentencing judge consider all mitigating and aggravating circumstances. [ 17 ] In this case, it is aggravating that Mr. David has a lengthy criminal record which includes 29 prior convictions between 2003 and 2012. Of those convictions, there are 12 “substantive” convictions for property offences including break and enter and offences of violence including uttering threats and robbery.

Additionally, his record includes 11 offences wherein he has been convicted of breaching court orders.

He was on a weapons prohibition order at the time of this conviction. [ 18 ] Additionally, it is aggravating that this offence was committed: in the dark hours of the night when this kind of incident is particularly disruptive to the occupants of private dwellings; the victims in this case aged 78 and 79, are elderly and as such, are particularly vulnerable; that one of the victims suffered a significant physical injury with long term ramifications; weapons were used, including a sawed-off rifle, bear spray and a 12-inch screwdriver (although Mr.

David says his reason for carrying the screwdriver was for break-in purposes); that violence was used against the occupants; the offender obtained the vehicle employed in this enterprise; and the robbery was conducted for the purpose of trafficking illegal drugs. [ 19 ] It is mitigating: that the offender was unaware until he entered the residence that violence would be inflicted upon the victims; that the offender early on admitted his guilt and gave a statement to police; that the offender plead guilty without the necessity of the victims having to testify; that the offenders did not remain in the victims’ home for a protracted period; that despite the offender’s lengthy record, only his robbery conviction from 2006 and his two convictions from October, 2009, (CDSA 4(1) and FTC) are on his adult record; and that the offender was only 23 years of age at the time of the offence.

[20] It is also mitigating and/or hopeful for Mr. David’s future rehabilitation that he appears to have significant family support. [21] It is also important that a sentencing judge take notice of Criminal Code

section 718.2(

b) which states: (

b) A sentence should be similar to sentences imposed on similar offenders for similar offences committed in similar circumstances. [22] To that end, counsel have provided cases for consideration by the court. [23] The defence has filed the Manitoba Court of Queen’s Bench case of R. v. Paul [2009] M.J. No 182.

In that case, the offenderbroke into the home of his victim, stole money and forced the 76-year old victim to go with him to an ATM and withdraw $300.00. [24] In the Paul case, the circumstances were somewhat less serious than in the case at bar in that no weapon was used, no violencewas used and the victim was not injured. However, the circumstances of the offender were more concerning in that he had a verylengthy related adult criminal record. Additionally, the “hostage” part of the crime lasted considerably longer than in the case at bar. Mr.

Paul was sentenced to six years in jail. [25] Also filed on behalf of Mr. David, is the case of R. v. Sawanas [2011] M.J. No. 342, from our Provincial Court. In that case,Mr. Sawanas and two others went to a residential dwelling to secure marijuana. They were let into the dwelling without forcing their wayin, but then took the residents hostage using a machete and an imitation firearm.

The robbery was essentially thwarted by the occupants,but not before the offenders had brandished the machete in the presence of young children. [26] The circumstances of that case were found not to be a home invasion or analogous to a home invasion because there was noevidence of a plan to rob the house and because entry was not forced. [27] The offender, Michael Sawanas, had a lengthy related criminal record including two adult convictions for break and entry,robbery and assault.

He received a jail sentence of six years for robbery and one year consecutive for use of an imitation firearm in thecommission of an offence. [28] The final case filed on behalf of Mr. David is R. v. Nolet, a 2009 decision by Judge Corrin of this court. In that case, theoffender and two others entered the home of an 84-year old man, pushed him to the floor and held him there while they robbed him ofhis wallet and money. The victim suffered a broken rib and permanent damage to his shoulder.

The offender received a jail sentence offive years and three months. [29] I did not find this case particularly helpful in determining the quantum of sentence as Mr. Nolet’s sentence was reduced toreflect that one of his co-accused had been given what Judge Corrin termed an inappropriately low, four-year sentence. [30] The Crown provided two cases, the first of which is R. v. R., a 2009 decision of the Manitoba Court of Appeal. The accused inthat case, along with an accomplice, forcibly entered the victim’s residence, tied up the occupants and threatened them with a gun to theirheads.

In that case, Justice Helper said: “it seems to me that a period of incarceration of seven to ten years constitutes a realistic range for serious home invasion robberies suchas we have before us on this appeal” (paragraph 14). [31] The offender was considered by the court in that case to have no realistic prospects for rehabilitation and he was sentenced toeight years. [32] In the above case, although neither victim was physically injured, they were essentially terrorized by the offenders. [33] The Crown also provided R. v. Pakoo, a 2004 decision, also of the Manitoba Court of Appeal. In that case, Mr.

Pakoo, who hadno previous record, broke into the residence of his former common-law spouse. Mr. Pakoo was armed with a rifle, which wasdischarged in the room of an 11-year old child. The rifle was also aimed in the vicinity of the ex-spouse, but jammed and did not fire. Additionally, the offender physically beat the ex-spouse’s boyfriend, causing him serious physical injuries.

He also caused some injuriesto his ex-spouse. [34] The court in that case accepted that the range of sentences for serious home invasions was seven to ten years, but found thatthere were significant mitigating factors to consider and sentenced the offender to five years, eight and one half months. [35] Clayton Ruby in his text book on sentencing, Ruby on Sentencing, 8th edition at page 968 says: “Like bank robbery, the robbery of people in their homes is generally considered more serious than street robbery of small commercialestablishments.

The sentencing range for such ‘home invasions’ is between 7 and 10 years, but can warrant a sentence as low as 5years or as high as 15 years if the aggravating factors warrant such. A typical sentence is one of 10 years.” [36] As this case involves a home invasion which is one of the most serious matters dealt with by Canadian courts, it is appropriateto remember why this offence is considered so significant. The Alberta Court of Appeal decision in R. v. Matwiy 1996 ABCA 63, [1996] AJ No. 134, is often quoted for its explanatory passage in this regard.

At paragraph 26, that judgment reads: “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. Individuals in their ownhomes have few of the security devices available to commercial institutions. They are often alone, with little hope that help will arrive.

Such offences, whether they result in injuries or not, are almost always terrifying, traumatic experiences for the occupants of theresidence, often leaving them with a total loss of any sense of security.” [37] Another reason why Matwiy is often cited is its clear statement that:

“one factor is constant. Denunciation, deterrence and the protection of the public were primary considerations in the sentencing of allaccused who chose to invade the sanctity of the home of another.” (para 21). [38] In that case, the offender was given ten years in jail.

Notable however, was the fact that he had 29 convictions, many of whichwere convictions while on parole. [39] While many of the “home invasion” cases speak of sentencing ranges, it is also repeatedly emphasized by Canadian courts ofAppeal that ranges are never absolute and that the unique circumstances of each case can move the matter out of the range, in eitherdirection. [40] In the case of R. v. Bernier, (2003), 177 CCC 3rd ed. 137 (B.C.C.A.), (at paras 105-106): “With respect to the matter of ranges, they are general guidelines, not hard and fast categories.

They do not preclude lesser or greatersentences, if the circumstances or applicable principles in the particular case warrant. The Supreme Court has in effect said this on manyoccasions: See eg. R. v. Proulx [2002] 1 SCR 61, and R. v. McDonnell (SCC), [1997] 1 SCR 948... I find it useful toregard a range simply as a continuum within which cases may be placed, depending on their facts and their relationship to the principlesof sentencing.

At one end of the continuum, a serious offence may have been carried out in a particularly egregious way; defencelesspeople may have been injured, perhaps cruelly; the perpetrator may have a long record; and none of the usual mitigating circumstancesmay exist. Obviously, deterrence, denunciation and protection of the public will be the most important principles to be considered insuch cases. In the middle of the continuum, one would place a ‘typical’ case, where the circumstances are not so serious and theoffender not particularly hardened by record or otherwise.

At the other extreme, one would place those instances where the offence wasnot egregious, there is hope the offender may be rehabilitated, he or she does not have a significant record and there are mitigatingcircumstances, such as the offender’s youth, aboriginal status, evidence of remorse, etc....” [41] This has also been clearly stated by Scott, C.J.M. of the Manitoba Court of Appeal, in R. v.

R. (P.S.) [1999] 138 Man.R. (2d) atpara 14 when he said: “There will undoubtedly be circumstances where the appropriate and fit sentence for a home invasion robbery could be higher or lowerthan the usual range of sentence.” [42] As always, the sentencing determination must take into consideration the individual circumstances of the offender and theoffence. Whether the ultimate sentence falls within or without the range is always in response to the unique circumstances of theoffence.

To that end, it is imperative to examine other factors that previous sentencing courts have emphasized. [43] Amongst other aggravating features, the length of the incident can be significant in placing the crime within the suggested rangeof sentencing. In R. v. Wright (ON CA), [2006] OJ No. 4870 from the Ontario Court of Appeal, a 27-year oldoffender with a prior criminal record involving three convictions for theft under $5,000.00, one conviction for attempted theft under andone for failing to attend, was given eight years in jail for robbery with a firearm in the context of a home invasion.

This young man wasalso strongly supported by family and friends who described his crime as “out of character”. In that case, the offender and his fouraccomplices were armed with handguns.

They did not harm the victims, but they did threaten them and the ordeal for the affectedfamily, which included an 11-year old boy, lasted approximately 45 minutes until police arrived and the invaders fled. [44] The duration of the hostage situation in the Wright case discussed above is considerably longer than in the case at bar. [45] It is also clear that sentences at the higher end of the sentencing range are more likely when serious violence is employed. Inthe Ontario case of R. v.

D.W. [2004] OJ No. 5825, the accused received ten years in jail in a home invasion matter where the victimwas repeatedly beaten and threatened with death. [46] In the Saskatchewan case of R. v. Stonechild 2009 SKPC 122 , [2009] SJ No. 630 (Sask Prov Ct), the offenderreceived a sentence of ten years of imprisonment for two home invasions. In the first, the victim was bound and beaten; in the second,the occupants were corralled into a corner of a room and robbed.

Additionally, the court concluded that the offender was a high risk tore-offend and he was on probation at the time of the offences. [47] In a case from the Ontario Court of Appeal with facts somewhat akin to the case at bar, R. v. Harriott (ONCA), [2002] OJ No. 387, the home invasion was committed by two accomplices whose faces were covered and one wielded a gun. Inthat case, one victim’s mouth was taped shut and she was threatened with a knife and kicked in the back.

That court upheld an eight yearjail sentence. [48] Case law in Canada has also considered that home invasions into the residences of either elderly or vulnerable persons shall be considered to be particularly egregious even without violence being employed. In Ruby on Sentencing, 8th edition, at page 973, theauthor states: “While violence against the elderly is clearly an aggravating factor, the lack of violence will still meet a sentence of at least four years.” [49] Ruby cites the Alberta Court of Appeal decision in R. v.

McCready [1992] AJ No. 1123, where “the offender entered the homeof an elderly woman, but made no threats of violence and had no intention of assaulting the victim. The Alberta Court of Appeal reducedthe sentence from six to four years.” (p. 973)

ANALYSIS: [ 50 ] Clearly all of the cases provided by counsel and all the cases quoted above turn on their own facts and circumstances. Some have more of one aggravating element and some more of certain mitigating factors. [ 51 ] In the R. v. R.(P.S.) decision of the Manitoba Court of Appeal provided by the Crown and quoted above, the eight year jail sentence reflected the fact that the offender held a gun to the victims and at one point, with the gun at the head of one of the victims, pulled the trigger twice. As well, the victims were both tied at their hands and ankles.

While the elderly victims in the case at bar were clearly significantly traumatized and in the case of the 79-year old man, also physically injured, the balance of the incident was not as horrendous as that in R.(P.S.). [ 52 ] In the second case provided by the Crown, also from the Manitoba Court of Appeal, the decision in R. v. Pakoo previously discussed, the offender had no record, but he discharged a gun and attempted to fire the gun in the direction of his ex-spouse and her boyfriend.

Additionally, he caused serious physical injury to the boyfriend and some physical injury to the ex-partner. [ 53 ] Once again, this incident was considerably more serious than that before the court. Mr. Pakoo, however, had considerable support, had convinced the court that he “had gone through a remarkable change following the incident.” (para 12) and had no criminal record. Mr. Pakoo received a five-year sentence. [ 54 ] In the R. v. Paul case provided on behalf of Mr. David, the offender brought to the sentencing a lengthy and very serious criminal record.

As well, the “hostage” part of the incident was somewhat longer than in the case before the court. Also noteworthy is the fact that the victim was not injured and no weapon was employed. [ 55 ] In R. v. Sawanas, also provided by counsel for Mr. David, the offender did have a lengthy record, a weapon was employed and it was used in the presence of children.

That case can be differentiated from the case before this court by the fact that the offender and his accomplices did not force their way into the residence, but were let in, and no one was physically hurt. [ 56 ] After a full examination of the cases discussed above and after consideration of the relevant sentencing principles from the Criminal Code most notably the fundamental principle of sentencing at CC 718.1 which states that “a sentence must be proportionate to the gravity of the offence and the degree of responsibility of the offender”, I am satisfied that the jointly recommended range of seven to nine years is appropriate in this situation.

It is clear that the principles of sentencing require that denunciation, deterrence and the protection of the public in this case are the dominant sentencing principles that must be considered. It is also clear, both from case law and common sense, that the invasion of an occupied home by offenders with weapons, employing force for the purpose of theft, must be denounced and deterred. This is a serious crime and the consequences must reflect the gravity of the crime. [ 57 ] To that end, it is my opinion that a significant period of incarceration is required.

There is no question that a period of incarceration of anywhere between seven and nine years is a significant period of incarceration. [ 58 ] There are a number of aggravating factors that place this crime within this significant range. The age and vulnerability of the victims, the unnecessary physical assault and resulting injury suffered by the elderly male victim, are significantly aggravating factors.

The criminal record of the offender reflects 29 prior criminal convictions between 2003-2012, including 12 substantive offences which include crimes of violence, breaking and entering, uttering threats and robbery.

The fact that this offender has previously been sentenced to significant periods of jail including 11 months in jail in 2006 for a robbery, and yet continues to re-offend is also aggravating. [ 59 ] That this offender has on numerous previous sentencing’s been given the opportunity and benefit of being placed on probation, yet has apparently not benefitted from this remedial assistance and has continued to re-offend, is not only aggravating but also discouraging in assessing his avowed intention to change his life. [ 60 ] All of these aggravating factors convince me that the fit and appropriate sentence in this matter falls within the seven to nine year range suggested. [ 61 ] Mr.

David also presents with a number of mitigating factors as previously discussed. Notable amongst these being that there is no evidence to suggest that he knew violence would be employed, nor was it he that perpetrated violence on one of the victims. Additionally, it is mitigating that while the victims experienced the horror of a home invasion, the incident was relatively short-lived. There is a significant difference between a brief encounter of this sort and a lengthy hostage incident. It is also mitigating that Mr.

David was only 23 years old at the time of this incident and that while he has a lengthy criminal record, there has been something of a gap or reduction in his anti-social activities in recent years. It is also significantly mitigating that Mr. David almost immediately admitted his guilt, provided a statement to police and entered an early guilty plea.

As acknowledged by the Crown, this was particularly significant as the offenders were masked and could not have been identified by the victims. [ 62 ] For all of the above reasons, not the least of which is his youth and the hope that the lengthy period of incarceration which he faces will cause him to re-direct his life, I am satisfied that the principles of sentencing are adequately met by a period of incarceration for seven years on the 344(

a) charge of robbery with a firearm. [ 63 ] There will be a concurrent sentence of one year on the possession for the purposes of trafficking charge CDSA 5(2). [ 64 ] Mr. David will be given sentencing credit for having been in custody for 295 days, or nine months and 23 days. Effectively going forward, his sentence is six years, two months and seven days.

[ 65 ] Additionally, there will be the following Orders:

(1) A

section 109 CC mandatory weapons prohibition, prohibiting him from possessing any firearm, cross-bow, restricted weapon, ammunition and explosive substance, for life;

(2) There will be a mandatory DNA Order made under

section 487.051 CC pursuant to the conviction under

section 344 (a);

(3) There will be an Order under

section 743.21 CC prohibiting contact from Mr. David with Alvin Flett, Dorothy Davis or Michael Flett, while he is incarcerated. [ 66 ] All costs and surcharges will be waived. [ 67 ] I will not make an Order as to forfeiture of items seized, as the co-accused in this matter have not been dealt with, but counsel for Mr. David has indicated on the record that he does not oppose the Crown’s request for forfeiture. _________________________ ALLEN P.J.