R. v. Parsons, 2018 NSPC 81

PROVINCIAL Court of Nova Scotia Citation: R. v. Parsons, 2 018 NSPC 81 Date: 20180629 Docket: 8084814-15 Registry: Dartmouth Between: Her Majesty The Queen v. Kenneth William Parsons Library Heading Judge: The Honourable Judge Frank P. Hoskins Oral Decision June 29, 2018 , Dartmouth, Nova Scotia Subject: Sentencing; principles of sentencing; aggravating and mitigating factors; break and enter and committing an indictable offence therein

Summary: The offender pleaded guilty to a break and enter and committing an indictable offence therein, contrary to s 348(1)(

b) of the Criminal Code . The offender, a resident in the complainant’s apartment building, kicked down the complainant’s door and entered her apartment. The offender yelled at the complainant, called her names, and made demands. The offender assaulted the complainant and threatened her not to call the police or else he would return to kill her. Issue: What is the fit and proper sentence for the offence of break and enter and committing an indictable offence therein, contrary to s. 348(1) (

b) of the Criminal Code . Result: The predominant sentencing objectives with respect to offences involving home invasion are general deterrence and denunciation. The nature of the offence of break and enter is such that a significant period of incarceration is generally warranted. The sentencing range for offences involving home invasion is broad, spanning three to fifteen years of incarceration. The upper end of that range is usually reserved for offences that were premeditated and well-planned, and which involve the targeting of a particular home, usually coupled with the infliction of extreme violence.

Similarly, where s 348.1 of the Criminal Code applies, knowledge or recklessness on the part of the offender as to whether the dwelling-house was occupied, as well as the use of violence or threats, constitutes an aggravator factor. The offender was sentenced to a global sentence of fifty-four (54) months of incarceration. The offender’s lack of premeditation and planning was a mitigating factor, although the use of violence, as well as the application of s. 348.1 of the Criminal Code were aggravating factors. THIS INFORMATION SHEET DOES NOT FORM PART OF THE COURT'S DECISION.

QUOTES MUST BE FROM THE DECISION, NOT THIS LIBRARY SHEET. PROVINCIAL Court of Nova Scotia Citation: R. v. Parsons, 2018 NSPC 81 Date: 20180629 Docket: 8084814-15

Registry: Dartmouth Between: Her Majesty The Queen v. Kenneth William Parsons Judge: The Honourable Judge Frank P. Hoskins Decision June 29, 2018 Charge: That on or about the 16 th day of March, 2017 at or near Dartmouth, Nova Scotia did, unlawfully break and enter a place, to wit, a dwelling unit, of Karen Marie Fredericks situate at 87 Pinecrest Drive, Apartment 1, Dartmouth, Nova Scotia, and did commit therein the indictable offence of assault, contrary to section 348(1) (

b) of the Criminal Code . And Further that he at the same time and place aforesaid, did unlawfully utter a threat to Karen Marie Fredericks to cause bodily harm or death to the said Karen Marie Fredericks, contrary to

section 264.1(1) (

a) of the Criminal Code . Counsel: Emma Woodburn for the Crown Alfred Seaman for the Defence By the Court: Introduction: [ 1 ] This is the sentencing decision in the matter of The Queen v. Kenneth William Parsons who pleaded guilty to the offences of breaking and entering into a dwelling house and committing an assault, contrary to s. 348(1) (

b) of the Criminal Code , and to uttering a threat to cause Karen Marie Fredericks bodily harm or death, contrary to s. 264.1(1) (

a) of the Criminal Code . He pleaded to these offences after the Crown had commenced its case and called several witnesses. [ 2 ] The offences for which Mr. Parsons has pleaded guilty are very serious indictable offences as reflected in their maximum sentences. The maximum sentence for breaking and entering a private-dwelling is life imprisonment. The maximum sentence for the uttering death threats is five years. [ 3 ] These offences occurred on March 16, 2017. They arise from the accused’s, Mr. Parsons, actions of breaking and entering the victim’s, Ms.

Karen Fredericks, home where he assaulted and threatened her. [ 4 ] The Crown alleges, and the Defence concedes, that the circumstances surrounding the commission of the offences should be characterized as a home invasion. Thus, s. 348.1 of the Criminal Code requires the Court imposing the sentence to consider as a statutory aggravating circumstance the fact that the dwelling home was occupied at the time of the commission of the offence, and that Mr.

Parsons knew or was reckless as to whether the dwelling house was occupied; as well as the fact that he used violence or threats of violence to a person or property. [ 5 ] There is no doubt that this case should be characterized as a home invasion as the circumstances surrounding the commission of the offences contain all the essential features of a violent home invasion. The Circumstances Surrounding the Commission of the Offences [ 6 ] The Crown and Defence have proffered the following agreed statement of facts which sets out the circumstances surrounding the commission of the offences.

The facts are as follows: • On March 16, 2017, at approximately 23:22 hrs, the police were contacted and dispatched to 87 Pinecrest Drive, Dartmouth, Nova Scotia, after Karen Turpin Fredericks (the “victim”) reported that Kenneth Parsons had kicked down her door, entered her apartment, assaulted her, and threatened to kill her. The victim lived in apartment 1, 87 Pinecrest Drive.

• At the same time, the police received a call that a man and a woman were fighting loudly in apartment 9 of 87 Pinecrest Drive, thereby causing a disturbance. The police attended apartment 9 and were refused entry. The police completed a forced entry of apartment 9 and located Kenneth Parsons in that unit with a female, Olivia McKinnon. • Police attended apartment 1, and met with the victim in that unit. She was observed to be crying, shaking and upset and complaining about pain.

Officers also observed damage to the deadbolt of the apartment door, the frame of which was laying on its side, as if the door had been forced in. • The victim reported that shortly after 23:00 hrs, on March 16, 2017, she was watching a movie alone in her apartment and heard a lot of banging, screaming, and shouting coming from upstairs. Shortly afterwards, the noises upstairs stopped, and she heard a scratching noise at her door and then a banging sound at her door. • The victim looked out the peephole but it had been covered.

The door then got kicked open, which hit her in the head because she was standing by the door. Kenneth Parsons entered the apartment yelling at her, calling her a rat, and told her he wanted money and cigarettes. She could see his face clearly and he was not wearing a shirt. • Mr. Parsons pushed her up against the wall. The victim told him repeatedly to leave, but he refused and demanded she give him whatever she had in the apartment. • When the victim told Mr. Parsons that she had nothing, he dragged her into her bedroom by the hair and threw her to the floor.

Her elbow struck the closet door when she fell. • When the victim again denied having anything in her apartment, Mr. Parsons picked her up by the back of her head, dragged her back into the living room, and then threw her onto the kitchen floor. She hit the counter and cupboards while falling. • Mr. Parsons bent down into the victim’s face and told her not to call the police or he would come back and kill her. He then left the apartment. • The victim ran into the bathroom and locked the door because she could no longer lock the front door of her apartment.

She then called the police. • The victim explained that she knew Mr. Parsons because her old roommate knew Mr. Parsons, and she had been introduced to him briefly on two occasions. • The victim stated that she was terrified and petrified throughout the encounter. She felt like she was having an anxiety attack and described being thrown around like a ragdoll. • Her injuries included a bruise on her shoulder, a bruise on her buttocks, and a bruise on her mid-back. • Since the incident, the victim suffers from insomnia, and sleeps with an axe because she is scared.

The Aggravating Factors Surrounding the Circumstances of the Offences [ 7 ] There are several aggravating factors surrounding the commission of the offences which must be considered, including the following: • As previously stated, these offences arise from a home invasion, in which Mr. Parsons forcefully gained entry into Ms. Fredericks’ home, and viciously assaulted and threatened her. • The degree of force used against Ms. Fredericks was violent, intense, and repetitive as noted. After he kicked in the door to gain entry into Ms. Fredericks’ home, Mr. Parsons immediately yelled at Ms.

Fredericks, calling her a rat, and demanded money and cigarettes. He pushed Ms. Fredericks up against a wall. Ms. Fredericks pleaded with Mr. Parsons to leave, but he continued to make demands. After Ms. Fredericks told Mr. Parsons that she had nothing in the apartment, he dragged her by her hair into the bedroom and threw her onto the floor. Ms. Fredericks’ elbow struck the closet door when she fell. After she repeated that she had nothing in her apartment, Mr. Parsons picked her up by the back of her head, and dragged her back to the living room and then threw her onto the kitchen floor. Ms.

Fredericks hit the counter and cupboards while falling. As she lay on the floor, Mr. Parsons bent down into Ms. Fredericks’ face and told her not to call the police or he would come back and kill her. • Ms. Fredericks was in a state of fear, as she was assaulted and threatened by Mr. Parsons. She was terrified throughout the encounter with Mr. Parsons. • Ms. Fredericks suffered a bruise of her shoulder, buttocks, and on her mid-back. • The offences have left an indelible impression on Ms. Fredericks, as she continues to feel the emotional impact of being attacked in her home.

She suffers from insomnia, and sleeps with an axe because she is scared. Undoubtedly, the psychological effects of these offences upon Ms. Fredericks are serious and lasting, which is an aggravating factor. • These offences occurred at night while Ms. Fredericks was alone in the comfort, security, and privacy of her home. Mr. Parsons breached her home and violently assaulted her. • It is an aggravating factor that Ms. Fredericks was in a particularly vulnerable position due to her age, the fact that she lived alone, the late hour, and her stature. • It is an aggravating factor that Mr.

Parsons threatened to kill Ms. Fredericks if she called, which clearly suggests that Mr. Parsons was capitalizing on Ms. Fredericks’ vulnerability.

The Circumstances Surrounding the Offender, Mr. Parsons [ 8 ] Mr. Parsons is 34 years old, having been born on April 21, 1984. His Pre-Sentence Report dated March 15, 2018, states the following: Mr. Parsons advised he was born in Grand-Falls Windsor, Newfoundland, to Gary and Karen Parsons. The subject mentioned his father was not active in his life during his formative years, and he was raised in a single parent family by his mother. Mr. Parsons advised he shared a good relationship with his mother, and speaks to her regularly.

In discussing his formative years, the subject described his childhood as a typical family life experience. Mr. Parsons indicated his mother provided "as well as she could" on a single income, and noted they had a "tight knit" extended family in Newfoundland, where they resided until the subject was 10 years of age. At that time, his family relocated to Nova Scotia. The subject advised he was an active child who participated in various sports including baseball and softball.

He recalled house rules were clearly established in the family home and a typical disciplinary action for a negative behavior consisted of being grounded. The subject noted he helped his mother out around the house from an early age, cooking and cleaning. Mr. Parsons indicated he started finding himself in trouble when he became a teenager, both at home and in the community. The subject mentioned he moved into a group home when he was 14 years of age, as the result of "being out of control." He advised he found himself in conflict with the law during his teenage years for stealing and theft of a motor vehicle.

This writer contacted Karen Parsons, mother of the subject, as a collateral reference in preparation of this report. Ms. Parsons confirmed the subject's account of his childhood. She advised she feels he has always struggled with mental health concerns, and could not remember if he was ever formally diagnosed but feels he had Attention Deficit Hyperactivity Disorder, and bi-polar disorder. Ms. Parsons mentioned he has attempted to access mental health services on numerous occasions in the past, but has not been successful. Ms.

Parsons advised the subject struggles with substance abuse concerns, which have caused many problems in his life. Ms. Parsons indicated the subject should not consume alcohol as he is not able to control himself. Ms. Parsons indicated that while she continues to be supportive towards her son, at times she has to avoid him as his actions throughout the years have caused her a great deal of stress. When asked about potential intervention strategies that could be utilized at the time of sentencing, Ms.

Parsons advised the subject would benefit from mental health counselling, along with a substance abuse treatment program. Mr. Parsons advised he was involved in an intimate relationship with Victoria Leblanc which commenced when the subject was 21 years of age. He indicated he had one son, William Leblanc-Parsons (age 10) as a result of this relationship. Mr. Parsons mentioned his relationship with Ms. Leblanc lasted for one-and-one-half years. He noted it ended as result of infidelity on the part of Ms. Leblanc, as well as Mr. Parsons' use of illicit substances.

The subject reported there were domestic concerns within the relationship. He advised he has maintained regular contact with his son throughout the years, and noted that while he does not pay any type of formal child support, he helps out financially when feasible. The subject reported he has been involved in a common law relationship with Olivia MacKinnon (age 21) for the past one-and-one-half years. Mr. Parsons described their relationship in positive terms and denied any domestic concerns within the relationship.

Contact was established with Olivia MacKinnon, girlfriend of the subject, as a collateral reference in preparation of this report. Ms. MacKinnon confirmed she had been involved in a relationship with the subject but advised the status of the relationship is "up in the air" due to his present incarceration. Ms. MacKinnon expressed, "Kenny is an amazing person and has a really great heart but he has some issues with drugs and when he is on drugs, I can't be a part of his life." Ms.

MacKinnon advised she continues to be supportive towards the subject and mentioned she believes he has never had guidance or support in his life. Ms. MacKinnon indicated she feels the subject would benefit from a structured routine and furthering his education. Ms. MacKinnon also noted the subject would benefit from participation in a treatment program to address his substance abuse concerns. Mr. Parsons advised he completed his Grade 9 education at Admiral Westphal Junior High School. The subject mentioned his grades averaged between 55-70% and his attendance was satisfactory. Mr.

Parsons stated he attended Dartmouth High School for a couple months. The subject recalled being suspended on numerous occasions as the result of physical altercations. Mr. Parsons mentioned he did attend the Adult Learning Program for a brief period of time. The subject indicated his future educational goals include obtaining his General Equivalency Diploma. Mr. Parsons advised he had been in receipt of disability pension benefits for the past year, prior to becoming incarcerated. The subject mentioned he had been unemployed for a couple months prior to being placed on disability pension benefits.

In the past, Mr. Parsons reported he was employed as a cook and kitchen manager for a period of 17 years, at various restaurants including Mic Mac Tavern, Lions Head Tavern, and Sam's Seafood and Grill. The subject advised he had always held some type of employment since he was 15 years of age. Mr. Parsons reported he has always been in generally good physical health. In regard to mental health concerns, the subject advised he suffers from depression and anxiety, but has never been followed by a mental health professional, nor does he take prescribed medication. Mr.

Parsons indicated he believes he has Attention Deficit Disorder, but has not been formally diagnosed. The subject advised he smokes marijuana to manage his Attention Deficit Disorder. Mr. Parsons indicated he would like to obtain his medical marijuana license, and also expressed an interest in participating in mental health counselling. In discussing alcohol and other illicit substances, the subject mentioned he consumed alcohol for the first time when he was 13 years of age. Mr.

Parsons advised he consumed alcohol on a regular basis during his twenties but noted he had not consumed alcohol in the past two-and-one-half years. Mr. Parsons noted that while alcohol has caused problems in his life, he has never considered himself to be an alcoholic. With regard to illicit substances, the subject mentioned he smoked marijuana for the first time when he was 13 years of age. Mr.

Parsons indicated he does smoke marijuana on a regular basis but does not feel he has an addiction to the substance, expressing "its habit forming." The subject admitted he experimented with acid and mushrooms during his teenage years. He advised he started using cocaine when he was 19 years of age, and admitted he "quickly" became addicted to cocaine. Mr. Parsons expressed, "It has caused

endless problems in my life. I would commit crime to get money to buy cocaine, I've missed work and it has also caused problems in myrelationships." The subject indicated he did attend the Choices Drug Program when he was a teenager. Mr. Parsons further noted he hasattended a couple Alcoholic Anonymous sessions during this period of incarceration. Mr. Parsons denied any concerns with gambling. The subject admitted he had a temper. He indicated when he finds himself becomingangry, he tries to walk away from the situation. However, Mr.

Parsons expressed, "If I am drinking it is not even a thought for me tobecome violent." The subject could not remember if he participated in any type of anger management counselling in the past. [9] The author of the report notes that Mr. Parsons was interviewed for the purpose of the Pre-Sentence Report at the CentralNova Scotia Correctional Facility when he was on remand: Mr. Parsons was polite and cooperative during the interview process and appeared to be of average maturity. In discussing the offencesfor which he is currently before the Court, Mr. Parsons indicated he accepted responsibility for his actions.

He mentioned he wasintoxicated and was looking for money that was owed to him. Mr. Parsons advised that if he was not intoxicated, he would have handledthe situation differently. He expressed, "When I'm drinking I don't feel I have control. I act on impulse. I was drinking hard liquor." [10] Mr. Parsons’ criminal record is attached to the Pre-Sentence Report. Mr. Parsons’ Criminal Record [11] Mr. Parsons has a criminal record. He has six prior convictions, dating between 2006 to 2012. His most recent conviction wasrendered on November 8, 2012 for a breach of probation.

He has one related conviction for break and enter whereby he received aconditional sentence of 12 months on September 19, 2011. [12] It should be noted that Mr. Parsons’ criminal record does not contain any previous convictions for violence. The presentoffences are his first offences of violence, and it is noted that there is a six year gap in his record. The Mitigating Factors Surrounding the Circumstances of the Offence and Offender, Mr. Parsons [13] Mr. Parsons pleaded guilty and accepted responsibility for committing the offences. [14] As the Defence acknowledged, Mr.

Parsons’ state of intoxication was self-induced, and it is a mitigating factor only to a veryslight degree where there is great violence, as in this case before the bar. [15] As noted, Mr. Parsons’ last criminal conviction was in 2012, six years ago, which demonstrates that he has the ability to be alaw-abiding citizen. [16] Mr. Parsons does not have any previous convictions for violence, which suggests that these offences may have been anaberration from his usual disposition. [17] Mr. Parsons has been on remand since January 31, 2018, which amounts to 152 days. Pursuant to s. 719, Mr.

Parsons is entitledto credit applied at a 1.5: 1 basis, which adds up to 227 days, totally approximately 7.5 months. [18] His Pre-Sentence Report was relatively positive, and he has the support of his mother, who is in Court today, and has been inthe past, as well as his girlfriend. [19] The Victim, Ms. Fredericks, elected not to file a victim impact statement. Crown’s Position [20] The Crown contends that the appropriate global sentence for these offences and the offender, Mr. Parsons, is in the range ofseven to eight years.

The Crown is also requesting an order under s. 743.21(1) of the Criminal Code, a DNA Order, and a mandatoryfirearm prohibition order under s. 109 of the Criminal Code. [21] In its written brief, the Crown referred to the following cases in support of its position: R. v. P.J.H., 2000 NSCA 7; R. v.Matwiy, 1996 ABCA 63; R. v. Fraser, 1997 NSCA 210; R. v. Hemlow, 1995, 147 N.S.R. (2d)1 (S.C.); R. v. Foster & Gour,; R. v.Stephenson,1997 NSCA 167 , 1997, 161 N.S.R.(2d) 371; R. v. Rhyno, 2013 NSSC 217; and R. v. Doyle, 2008 NSSC 380.

Defence’s Position [22] The Defence submits that the appropriate global sentence for these offences and offender, Mr. Parsons, is a sentence of threeyears imprisonment. The Defence is not opposed to the ancillary orders sought by the Crown. [23] In its written brief, the Defence referred to the following cases to support its position: R. v. MacLennan, [2016] N.S.J. No. 554;R. v. Barrows, 2017 NSSC 216; R. v. Newhook, 2008 NLCA 28 , [2008] N.J. No.258; R. v.P.J.B., (NLCA), [1999] N.J. No. 290; R. v. Anderson, (NS SC), [1998] N.S.J.No.271; R. v. Strickland, [2006] N.J. No. 252; andR. v. D.W.A., [2002] B.C.J.

No. 1156. The Relevant Statutory Provisions and Common-Law [24] The Supreme Court of Canada has enunciated the correct approach to sentencing in R. v. M.(C.A.), (SCC),[1996] 1 S.C.R. 500, and Parliament has enacted legislation which specifically sets out the purpose and principles of sentencing. Thus, itis these sources, and the common-law jurisprudence, to which courts must turn in determining the proper sentence to impose.

[25] It is trite to say that the imposition of a just and appropriate sentence can be difficult a task as any faced by a judge, as it was inthis specific case. [26] However, as difficult as the determination of a fit sentence can be, that process has a narrow focus. It aims at imposing asentence which reflects the circumstances of the specific offence or offences, and the attributes of the individual offender.

Sentencing isnot based on group characteristics, but on the facts relating to the specific offence and offender as revealed by the evidence adduced inthe proceedings. [27] Generally, it is recognized that a fit sentence is the product of the combined effects of the circumstances of the specific offenceor offences with the unique attributes of the specific offender. [28] Although the sentencing process is highly contextual and necessarily an individualized process, the judge must also take intoaccount the nature of the offence, the victims and community. As Lamer, C.J.

C. (as he then was), noted in M.(C.A.), sentencing requiresan individualized focus, not only of the offender, but also of the victim and community as well. [29] Sentencing is governed by the specific purpose and general principles of sentencing provided for in the Criminal Code under s.718. [30] In addition to complying with these principles of sentencing, dispositions or sentences must promote one or more of the sixobjectives identified in s.718(

a) to (f), inclusive. [31] The purpose of sentencing is achieved by blending the various objectives enumerated in s. 718(a) - (f). In each case, the properblending of those objectives depends upon the nature of the offence and the circumstances of the offender. Thus, the judge is often facedwith the difficult challenge of determining which objective, or combination thereof, deserves priority. [32] Indeed, s. 718.1 directs that the sentenced imposed must fit the offence and offender.

Section 718.1 constitutes the codificationof the fundamental principle of sentencing, the principle of proportionality, which is deeply rooted in notions of fairness and justice. [33] I have considered the fundamental purpose of sentencing as clearly and succinctly expressed in s. 718, of the Criminal Code, thefundamental principle as stated in s. 718.1 of the Criminal Code, and the other sentencing principles as set out in 718.2 of the CriminalCode.

The latter stipulates that a sentence should be increased or reduced to account for any relevant aggravating or mitigatingcircumstances relating to the offence and/or offender. [34] I am also mindful of the principle of restraint which underlies the provisions of s. 718 of the Criminal Code. [35] In accordance with s. 726.2 of the Criminal Code, what follows are my reasons for imposing the sentence which I view as a“just and appropriate,” a fit and proper sentence” for this offender and for these offences. [36] The Nova Scotia Court of Appeal has repeatedly and consistently emphasized that crimes of violence, particularly homeinvasions, will require significant custodial sentences. [37] As previously mentioned, the offence of break and enter with intent to commit an indictable offence is a very serious offence,particularly when it involves a private dwelling. [38] In Nova Scotia, as in other jurisdictions, the range of sentences imposed for break and enters and committing an indictableoffence, such as in this case, in the context of a home invasion, is broad.

In Nova Scotia, the range is from a suspended sentence withprobation to significant years of incarceration depending on the mitigating and aggravating circumstances surrounding the offence andoffender. [39] I am mindful that premeditated, well planned, and executed home invasions, where violence is inflicted upon the occupants,usually carries a significant period of federal incarceration.

Indeed, it is arguable that Parliament’s concern about the nature and gravityof these types of offences being committed in communities across the country was the impetus for the amendment to the Criminal Code,which enacted s. 348.1 of the Criminal Code.

Section 348.1 provides: If a person is convicted of an offence under

section 98 or 98.1, subsection 279(2) or

section 343, 346 or 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 wasoccupied 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. [40] In R. v. Harris 2000 NSCA 7 , [2000] N.S.J. No. 9, Chief Justice Glube, in delivering the judgment of the Nova ScotiaCourt of Appeal, at paras. 57 - 62 wrote: [57] I would reject the submission of counsel for the appellant that, in Fraser, this Court established a range of 6 to 10 years forsentences in all cases of home invasion robberies.

Pugsley, J.A. stated: This court has approved a range of sentence of between six to ten years for robberies of financial institutions and private dwellings.[Citations omitted.] (Para. 22.) [58] Later at paragraph 27, he stated: I consider that house invasion robbery of this type should attract a sentence greater than that imposed for armed bank robbery.

[Emphasis added.] [59 ] At paragraph 33, Justice Pugsley stated: I agree with the following comments of the Alberta Court of Appeal in R. v. Matwiy (S.B.) and Langston (J.D.) (1996), 1996 ABCA 63, 178 A.R. 356; 110 W.A.C. 356; 105 C.C.C. (3d) 251 (Alta.C.A.) at p. 263: We are of the view that the home invasion robbery merits a higher starting-point sentence than the armed robbery of a bank orcommercial institution.

While offences of violence are abhorrent wherever they occur, offences which strike at the right of members ofthe public to the security of their own homes and to freedom from intrusion therein, must be treated with the utmost seriousness.Individuals in their own homes have few of the security devices available to commercial institutions. They are often alone, with littlehope that help will arrive. Such offences, whether they arise in injuries or not, are almost always terrifying, traumatic experiences for theoccupants and the residents, often leaving them with a total loss of any sense of security.

The starting point in Matwiy was 8 years for home invasion robberies. [60] At paragraph 34, Justice Pugsley in Fraser repeated again: As I have indicated, this court has placed a bench mark of six to ten years for robberies of financial institutions and private dwellings.While I consider an invasion of a private dwelling of this type should attract a sentence greater than that for robbery of a financialinstitution, Mr. Fraser's plea of guilty, his remorse, and the other circumstances detailed in the pre-sentence report, are factors to beconsidered. [61] He then varied the sentence of Mr.

Fraser to 6 years for the robbery. (See also: R. v. Stephenson (1998), 1998 NSCA 152 ,169 N.S.R. (2d) 159 (para. 25)). [62] These statements in Fraser do not settle a range for home invasion robberies of 6 to 10 years. One must look at the individual caseand the mitigating and aggravating factors and determine what the appropriate sentence should be. In Shropshire, at paragraph 47 and48, and in McDonnell, at paragraph 15, the Supreme Court relied on two decisions from Nova Scotia and stated: I would adopt the approach taken by the Nova Scotia Court of Appeal in the cases of R. v.

Pepin (1990), (NS CA), 98N.S.R. (2d) 238, and R. v. Muise (1994), 1994 NSCA 198 , 94 C.C.C. (3d) 119. In Pepin, at p. 251, it was held that: ... in considering whether a sentence should be altered, the test is not whether we would have imposed a different sentence; we mustdetermine if the sentencing judge applied wrong principles or (if) the sentence is clearly or manifestly excessive.

Further, in Muise it was held at pp.123-24 that: In considering the fitness of a sentence imposed by a trial judge, this court has consistently held that it will not interfere unless thesentence imposed is clearly excessive or inadequate... ... The law on sentence appeals is not complex. If a sentence imposed is not clearly excessive or inadequate it is a fit sentence assuming thetrial judge applied the correct principles and considered all relevant facts.... My view is premised on the reality that sentencing is not anexact science; it is anything but.

It is the exercise of judgment taking into consideration relevant legal principles, the circumstances of theoffence and the offender. The most that can be expected of a sentencing judge is to arrive at a sentence that is within an acceptable range.In my opinion, that is the true basis upon which Courts of Appeal review sentences when the only issue is whether the sentence isinadequate or excessive. ...

Unreasonableness in the sentencing process involves the sentencing order falling outside the "acceptable range" of orders; this clearlydoes not arise in the present appeal. [41] Later at paras 81 to 82 Glube C.J. further commented: [81] These types of offences (home invasion) require denunciation by society, deterrence of the accused and others from committing thistype of offence, and protection of the public as the primary considerations of sentencing those who choose to invade the sanctity of thehome of another and do violence through intimidation, terrorism or actual assault. [82] In my opinion, the sentencing judge made no error in principle, he considered all relevant factors, he did not place undue emphasison any factor, and the sentence is not "demonstrably unfit" or "clearly unreasonable" considering the horrific nature of the assault andthe circumstances surrounding the whole robbery.

Protection of the public and deterrence are paramount and absolutely necessary in thiscase. I would find the sentences imposed were within the range, were not manifestly excessive and were fit sentences. [42] In R. v. Fraser (1997), 1997 NSCA 210 , 158 N.S.R. (2d) 163 (C.A.), the Nova Scotia Court of Appeal emphasizedthat general deterrence is the most important consideration in a home invasion offence. That case involved an entry into an elderlyperson's home, during which the offender wore a mask and brandished a plastic knife, demanding money. Pugsley J.A.’s comments inparas. 20 to 23 are apposite.

He wrote: [20] The primary objective in sentencing for this type of offence is protection of the public and that can best be obtained by imposingsentences that emphasize deterrence. [21] The extent to which Parliament considers these offences to be serious is reflected in the penalties applicable - 10 years for wearing

a mask with intent, and life imprisonment for robbery. [22] This Court has approved a range of sentence of between six to ten years for robberies of financial institutions and private dwellings(R. v. Brewer (1988), (NS CA), 81 N.S.R. (2d) 86, R. v. Leet (1989), (NS CA), 88 N.S.R. (2d)161). [23] Mr. Fraser's age, and his previous unblemished record, while factors, should not materially lessen the length of the sentence.

TheCourt must always consider the opportunity to reclaim the individual when fashioning a sentence, but that objective, must in cases of thiskind, yield to the primary object of protection of the community (R. v. Helpard (1996), (NS CA), 145 N.S.R. (2d) 204at 207). [43] In R. v. Best 2006 NSCA 116 , [2006] N.S.J. No. 419, Chief Justice MacDonald, in delivering the judgment of theNova Scotia Court of Appeal, emphasized the paramountcy of general and specific deterrence, denunciation and protection of the publicin imposing a sentence for a home invasion.

In doing so, at paras. 36 to 37 he stated: [36] In situating this sentence it is instructive to review this Court's decision in R. v. Harris (2000), 2000 NSCA 7 , 181 N.S.R.(2d) 211. There, Harris, who was 20 years old at the time of the offence, appealed a 15 year sentence for robbery running concurrentlywith a 14 year sentence for assault. The offender and an accomplice broke into an elderly couple's home. The wife suffered a broken hipwhen knocked to the floor. The husband was beaten with a cane. Harris pled guilty at the first opportunity.

In dismissing the appeal, thisCourt commented that home invasion offences require a focus upon denunciation, general and specific deterrence and protection of thepublic. The Court found that sentence to be neither demonstrably unfit, nor clearly unreasonable. [37] In addition to citing R. v. Harris, supra, the judge, carefully reviewed the facts of the offences, the principles and purposes ofsentencing and addressed both proportionality and parity.

He was especially aware of the totality principle and noted that the he mighthave to modify the total that would result from fixing sentence for each of the five individual offences if the resulting sentence would beunjust. . . . [44] Now. I realize that the facts in our case are not nearly as gruesome as those in Harris and Best. Furthermore, no case is ever thesame, and it would be dangerous to generalize. However, while the specifics of each case must be assessed, serious jail time for this typeof offence is generally required. For example, in R. v. Wright, (ON CA), [2006] O.J.

No. 4870, at para. 24, theOntario Court of Appeal explained: [24] In my view, however, "home invasion" cases call for a particularly nuanced approach to sentencing. They require a carefulexamination of the circumstances of the particular case in question, of the nature and severity of the criminal acts perpetrated in thecourse of the home invasion, and of the situation of the individual offender.

Whether a case falls within the existing guidelines or range -or, indeed, whether it may be one of those exceptional cases that falls outside the range and results in a moving of the yardsticks - willdepend upon the results of such an examination. I agree with the British Columbia Court of Appeal in A.J.C. (at para. 29), however, thatin cases of this nature the objectives of protection of the public, general deterrence and denunciation should be given priority, althoughof course the prospects of the offender's rehabilitation and the other factors pertaining to sentencing must also be considered.

Certainly, astiff penitentiary sentence is generally called for. [45] In Best, Chief Justice MacDonald found that the appropriate range of sentence for Mr. Best was three years imprisonment. Inreaching that conclusion, he considered the

summary of cases submitted by the Crown on appeal as being of assistance, as they are hereas well. He wrote, at para. 32: [32] Turning then to the relevant case law, I accept the following summaries prepared by the Crown in its factum as helpful guidance forthe particular circumstances we face: 55 The Crown offers the following examples to assist this Court in determining whether ninety days' incarceration to be servedintermittently was manifestly inadequate in these circumstances: (

i) R. v. Campeau, 2009 SKCA 4: Two accused knocked at the victim's front door at 1:30 a.m. Victim #1 tried to close the door. The co-accused barged in. Victim #1 anticipated harm and barricaded himself in the washroom. Both accused kicked at the door and threatenedhim. Victim #2 tried to call 911. The co-accused wrestled her to get the phone while the accused continued to kick the bathroom doorexhorting victim #1 to come out. The accused called victim #1 a rat and never harmed victim #2. The co-accused struck and pulledvictim #2's hair.

The assault resulted in a hairline fracture to her nose, bruises, and psychological trauma. The accused had thirty priorsincluding four break and enters. On appeal, his sentence was increased to forty months' incarceration; (ii) Goulette: The victim awoke to being beaten by the accused. He suffered a broken nose and bruises, as well as $2,000.00 damage tohis computer. Accused's record had a ten year gap. He was sentenced to nine months' incarceration, after twenty-one months' credit forremand.

The provincial Crown brought a fresh evidence application, as it was unaware of a possession for the purpose of traffickingconviction just preceding this conviction. Regardless of the fresh evidence, the sentence was adjusted to sixty-six months' incarceration.Thirty months as the aggregate sentence was considered too low for a home invasion to properly address denunciation and deterrence; (iii) R. v. Oulton, 2004 NBCA 21: Two co-accused disguised with weapons entered the house of the victim. They put a gun to the head ofthe victim and uttered threats. There were no injuries.

Six years' incarceration was confirmed on appeal; (iv) Joyce: The victim was asleep when two masked intruders entered his home, beat him, and stole $200.00. In an attempt to escape, hesuffered a severe wound to his thigh at the hand of the accused. The co-accused, who pleaded guilty early and had a less significant roleand record, received six years' incarceration. The accused received eleven years; (

v) McCowan, [2009] M.J. No. 95: The accused and his wife were substance abusers. His wife had a relapse and began a sexualrelationship with the victim. The accused broke into the victim's home, entered the bedroom, and struck the victim eight to ten timeswith his fists. Severe injuries [including traumatic brain injury] resulted in permanent disabilities. Offender had a very good Post-

Sentence Report. An effective sentence of five and one-half years' incarceration, due to the positive Post-Sentence Report, was affirmedon appeal, [2010] M.J. No. 165; (vi) Morash: The accused was part of a group who had a bad encounter with others. A fight broke out at a crashed party. Victim #1 wasstruck with a bottle. He and victim #2 were badly beaten. The accused had served the equivalent of one year in remand. He wassentenced to a period of incarceration of six years and eleven months. This was affirmed on appeal; (vii) R. v.

Forrester, 2004 BCSC 1310: Two accused went to the victim's house in a dispute over a bicycle. They were armed with batsand disguised with balaclavas. They assaulted the occupants. The accused received five years' incarceration for aggravated assault, andtwo years' concurrent for break and enter. The accused was of aboriginal heritage with no record at the time. He was gainfully employedand made use of his pre-trial time to further his education. Rehabilitation and specific deterrence, however, given the level of violence,took second place to denunciation and deterrence; (viii) R. v.

Ross, 2009 BCSC 1831: A twenty-three year old aboriginal offender with no record broke into a house with three others andassaulted the occupants with bats. The offenders pleaded guilty. The accused participated in persistent counselling and was of otherwisegood character. But for the remand for which he received thirty-three months' credit, the Court would have sentenced him to forty-fivemonths' incarceration. The net sentence was one year's incarceration on a go forward basis; (ix) R. v.

Mack, 2001 BCCA 688: A twenty year old native suffering from fetal alcohol syndrome, with a record, used an iron to beat afemale victim when he broke into her house. He was high at the time. He spent twenty-three months on remand. The Court of Appealtook the view that a nine year period of incarceration as a starting-point was not outside the range. After a proper reduction of the netsentence following a recalculation of remand credit, he received five years' incarceration.

Notably, Justice Esson would have dismissedthe appeal; and Justice Huddart, while agreeing with the net result, would have started at a higher point; (

x) Sharphead: There were few clear findings of facts. What could be gleaned was that the accused was one of three who broke in andknifed a victim. The accused did not testify. He did admit his involvement to the police. The PSR was mixed, and included expressedremorse and efforts to stay positive. He was a First Nations offender with alcohol issues. The Court of Appeal adjusted the sentence tothree years' incarceration for break and enter and commit aggravated assault, concluding that the trial Judge erroneously overemphasizedthe youth and lack of record of the offender.

Consequently, he ignored the host of aggravating features which cried out for denunciationand deterrence. [46] After reviewing these cases, Chief Justice MacDonald noted, para. 33 that: [33] These cases depict a range of 3 to 11 years' imprisonment. Of course, all are fact specific. Here the following considerations wouldlead me to the three-year mark: -- Mr.

Best's positive pre-sentence report; -- his cooperation with the authorities to date, including turning himself in when he heard he was being investigated; -- his strong family support; -- the fact that he has no criminal record to speak of; -- his post-sentence report confirming his apparent abstinence from both drugs and alcohol; -- the fact that he is awaiting further counselling. [47] In light of all of the foregoing, it would appear from the cases submitted by Counsel, and others, that there is a broad range ofsentence for offences involving home invasions.

This broad range exists because sentencing is highly contextual and necessarily anindividualized process. As stated by the British Columbia Court of Appeal in R. v. Chudley [2016] B.C.J. No. 637, at para. 22: [22] There is no single offence of "home invasion". Instead, the term is used as a shorthand expression describing a combination ofoffences involving breaking and entering a dwelling with the intent to commit a robbery, with knowledge or recklessness as to whetherthe dwelling is occupied. They also often involve the confinement, terrorizing or assault of the occupants: Bernier at paras. 81, 97.

ThisCourt has held that caution is required in suggesting a general range of sentences for home invasions because the term lacks precisionand the combinations of crimes changed in each individual case will vary: Bernier at paras. 37, 81-82. [48] It would appear from a review of the case law across the country that the upper end of the range of sentence for home invasions– sentences in the double digits – are reserved for cases with significant aggravating factors which include: offences that werepremeditated, well-planned, and which involve the targeting of a particular home, usually coupled with the infliction of extreme violenceagainst unsuspected occupants, such as in the Harris case.

In that case, the Nova Scotia Court of Appeal confirmed a 15 year sentencefor a home invasion robbery involving premeditation, extreme use of violence, limited remorse and little chance of rehabilitation.Similarly, in R. v. A.J.C., 2004 BCCA 268 , [2004] B.C.J.

No. 964, at para. 41, Finch C.J., stated that: [41] In my view, the 15 year sentence imposed in Jones, supra, and the 14 year sentence effectively imposed in Barton, supra indicatethe length of sentence which may well be appropriate in the most aggravated circumstances where a "home invasion" involves not only abreak and enter to commit robbery, the terrorizing and confinement of victims, and the use of weapons to achieve these objectives, butalso the infliction of serious injuries, sexual assault or death. [49] In R. v. Doyle, [2008] N.S.J.

No. 571 Justice Roberston observed, para. 10: 10 The Crown has submitted a series of cases that reflect society's abhorrence of crimes of this sort, a home invasion against avulnerable old man who now lives in fear. The cases urge the Court to consider the aggravating circumstances which they suggest

outweigh the ameliorating factors. In R. v. Harris, 2000 NSCA 7 , [2000] N.S.J. No. 9, there was a sentence of 15 years but Inote that case reflected a high degree of violence against an elderly couple. R. v. Wright, (ON CA), 2006 CarswellOnt 7721, notes that a home invasion has been considered by various Courts of Appeal and they consistently imposed sentences thatexceed five to eight-year ranges saying that ranges are not fixed in law, unlike binding legal principles, but run the gamut of sentences aslow as four years and as high as thirteen years.

There is a suggestion that higher sentences should be reserved for more serious situationsof confinement and serious personal injury. R. v. Brace, 2008 Carswell Yukon 61, was on the low end of the scale and a sentence of threeyears was imposed. R. v. Matwiy, 1996 ABCA 63 , 1996 Carswell Alta 148, I note that the accused was an aboriginal offender.The starting point for a home invasion the court suggested was eight years. R. v. Moore, 2008 BCCA 129 , 2008 Carswell BC673, the global sentence of eight years was imposed for a home invasion. R. v.

O'Keefe, 2007 Carswell Nfld 284, deals with the disparityof sentencing between a co-accused in a home invasion, Mr. O'Keefe was then sentenced to eight years, but the Court of Appeal reducedhis sentence to six years. R. v. Vickers, 2007 Carswell BC 2764, Mr. Vickers received a ten-year sentence and the court noted that whilerehabilitation cannot be overlooked, the accused was not a good candidate for rehabilitation in that case. R. v. Fraser, 2007 SKCA 113, 2007 Carswell Sask 593, the court dealt with the aggravating factors of a home invasion under

section 348.1 of the CriminalCode and they spoke to a range of seven to ten years recognizing the vulnerability of victims and in consideration of the degree ofviolence involved in the crime. [50] In Nova Scotia, as in other jurisdictions, the range of sentences imposed for home invasion offences varies considerably. Therange of a sentence for the offence of home invasion is very broad.

It extends from the suspension of the passing of a sentence to severalyears of incarceration. [51] I should also note that ranges, however, are neither set with firmness nor is the analysis of previous cases and a comparisonwith those cases the sole measure of the appropriate range. It is possible that the ranges should change, so as to widen or narrow, andchange in accordance with social circumstances. Thus, one cannot, in my view, be certain about the range merely from an examination ofprior cases. [52] As stated by our Court of Appeal, in R. v. A.N., [2011] N.S.J.

No. 87, at para. 34 of that decision: 34 Unless expressed in the Code, there is no universal range with fixed boundaries for all instances of an offence: R. v. M.(C.A.), para.92; R. v. McDonnell, para. 16; R. v. L.M., para. 36. The range moves sympathetically with the circumstances, and is proportionate to theCode's sentencing principles that include fundamentally the offence's gravity and the offender's culpability. . . . Once the sentence occupies the range, is fit and is not clearly unreasonable . . . [53] It is worthy of note that in considering the parity principle, pursuant to s. 718.2(

b) of the Criminal Code, I am mindful of whatthe Supreme Court of Canada stated in. M.(C.A.) at para. 92: [92]. . . It has been repeatedly stressed that there is no such thing as a uniform sentence for a particular crime. . . .

Sentencing is aninherently individualized process, and the search for a single appropriate sentence for a similar offender and a similar crime willfrequently be a fruitless exercise of academic abstraction. [54] In light of these comments, I have considered the numerous cases submitted by counsel, as well as others, in determining therange of sentence available for this particular type of home invasion offence. While these cases are helpful in determining theappropriate range, no two cases are exactly the same, as the circumstances of each case differs from that of the others.

Each case turnsneatly on its facts. [55] I am also mindful of Justice Hallett’s comments in R. v. Muise, 1994 NSCA 198 , [1994] N.S.J. No. 487, at para. 83,writing for the Nova Scotia Court of Appeal: 83. . . sentencing is not an exact science; it is anything but. It is the exercise of judgment taking into consideration relevant legalprinciples, the circumstances of the offence and the offender.

The most that can be expected of a sentencing judge is to arrive at asentence that is within an acceptable range. [56] In my view what distinguishes this case from some of the other home invasions cases, including the cases of: Harris, Fraser,Foster, Matwiy, Doyle and Stephenson, is the absence of a degree of premeditation and planning. This includes, in some cases, accusedsarming themselves with offensive weapons, wearing masks, and/or conducting surveillance or targeting a home. [57] In this case, it is reasonable to infer from the facts that Mr. Parsons went from his apartment to Ms.

Fredericks apartment, whichis in the same building, in a highly-agitated state while not wearing a shirt. He was yelling at Ms. Fredericks, and called her a rat when heentered her apartment, demanding money and cigarettes. Thus, it is reasonable to infer from the facts that Mr. Parsons’ actions wereconsistent with a spontaneous, or spur of the moment decision to confront Ms. Fredericks, rather than a well-planned, premeditated act. [58] I am not satisfied that the Crown established beyond a reasonable doubt, based on the agreed statement of facts, and inaccordance with s. 724 (3) of the Criminal Code, that Mr.

Parsons had possessed a significant degree of premeditation and planning incommitting these offences. A significant degree of premeditation and planning would be clearly an aggravating factor. [59] In my view, the absence of this aggravating factor warrants a sentence lower than what the Crown is recommending in this case,which is seven to eight years.

However, a sentence higher than what the Defence is recommending, which is three years, is warranted. [60] While I accept the agreed statement of facts proffered in this case, it does not establish a significant degree of premeditation andplanning that often exist in these type of cases, the nature and degree of violence inflicted upon Ms.

Fredericks is an extremelyaggravating factor that calls for a sentence higher than three years as suggested by the Defence, especially when Adams and Zong areconsidered, which suggest a benchmark of two to three years for a break and enter offence, that can move upwards or downwardsdepending on the mitigating and aggravating factors involved in the case. In this case, s. 348.1 of the Criminal Code is applicable,coupled with all of the aggravating and mitigating factors discussed earlier in these reasons.

[61] In reaching a fit sentence for these offences and for Mr. Parsons, I have also considered the principle of restraint, whichunderlies the provisions contained in s. 718 of the Criminal Code. [62] As stated, the purpose of sentencing is to impose “just sanctions”. A “just sanction” is one that is deserved. A fit sentence inthat context is one that is to commensurate with both the gravity of the offence and the moral blameworthiness of the offender.

In R. v.Proulx 2000 SCC 5 , [2000] 1 S.C.R. 61, at para. 82, Chief Justice Lamer reaffirmed that principle wherein he stated: [82] Proportionality requires an examination of the specific circumstances of both the offender and the offence so that the "punishmentfits the crime". [63] Disparity in sentencing for similar offences is a natural consequence of the fact the sentence must fit not only the offence butalso the offender. [64]

Section 718.1 of the Criminal Code directs that the sentence imposed must fit the offence and the offender.

Section 718.1 is thecodification of the fundamental principle of sentencing, the principle of proportionality. This principle is deeply rooted in notions offairness and justice. [65]

Section 718.1 provides: A sentence must be proportionate to the gravity of the offence and the degree of responsibility of the offender. [66] As Doherty J.A., observed in R. v. Hamilton (ON CA), [2004] O.J. No. 3252, at para. 93: 93 Fixing a sentence that is consistent with s. 718.1 is particularly difficult where the gravity of the offence points strongly in onesentencing direction and the culpability of the individual offender points strongly in a very different sentencing direction.

The sentencingjudge must fashion a disposition from among the limited options available which take both sides of the proportionality inquiry intoaccount. As indicated in Priest, supra, factors which may accentuate the gravity of the crime cannot blind the trial judge to factorsmitigating personal responsibility.

Equally, factors mitigating personal responsibility cannot justify a disposition that unduly minimizesthe seriousness of the crime committed. [67] The fundamental purpose of sentencing and the objectives underlying that purpose cannot be justified unless they areproportionate both to the gravity of the offence and the degree of responsibility of the offender. In R. v. Lacasse 2015 SCC 64 ,[2015] 3 S.C.R. 1089, at para.12, Justice Wagner, writing for the majority, held that: 12 Proportionality is the cardinal principle that must guide appellate courts in considering the fitness of a sentence imposed on anoffender.

The more serious the crime and its consequences, or the greater the offender's degree of responsibility, the heavier the sentencewill be. In other words, the severity of a sentence depends not only on the seriousness of the crime's consequences, but also on the moralblameworthiness of the offender. Determining a [page1091] proportionate sentence is a delicate task. Both sentences that are too lenientand sentences that are too harsh can undermine public confidence in the administration of justice.

Moreover, if appellate courts intervenewithout deference to vary sentences that they consider too lenient or too harsh, their interventions could undermine the credibility of thesystem and the authority of trial courts. [68] The principle of proportionality in punishment is fundamentally connected to the general principle of criminal liability, whichholds that the criminal sanction may only be imposed upon those individuals who possess a morally culpable state of mind. This notionwas embraced by the Supreme Court of Canada in R. v.

Martineau, (SCC), [1990] 2 S.C.R. 633, at para. 11 wherein theCourt, while discussing the constitutional requirement of fault for murder, held that “punishment must be proportionate to the moralblameworthiness of the offender”. Thus, the duty of a sentencing judge is to consider all of the applicable principles of sentencing indetermining a just and appropriate sentence which reflects the gravity of the offence committed and the moral blameworthiness of theoffender. [69] The Ontario Court of Appeal in R. v. Priest (ON CA), [1996] O.J.

No. 3369, at para. 26, expressed the viewthat proportionality ensures that an individual is not sacrificed “for the sake of the common good”. [70] An appropriate or reasonable disposition will depend on the circumstances of the case in the context of all relevantconsiderations, which includes not only the personal circumstances of the offender and the degree of responsibility of the offenderrespecting the offence, but also the gravity of the offence itself. [71] The proportionality principle must also take into account the presence of any aggravating or mitigating circumstances includingthose listed in s. 718.2(

a) of the Criminal Code. [72] Our Appeal Court and those of other provinces have repeatedly stated that general deterrence and denunciation are theobjectives to be emphasized in these types of offences which involve the break and enter into private dwellings particularly in the contextof home invasions. [73] This is not to say that the other objectives are not important or are not to be considered, however, I believe that because of theview which our courts and our society takes of these crimes, denunciation and deterrence must be the primary focus.

A sentence which isunduly lenient can provide neither the necessary deterrence nor denunciation required to meet the fundamental purpose of sentencing. [74] In essence, each case appears to turn very much on its own unique set of circumstances. Thus, it is often a difficult challenge toapply the principle that a sentence should be similar to sentences imposed on similar offenders for similar offences committed in similarcircumstances. [75] In the present case, Mr. Parsons is not a youthful offender, nor is he a first offender; however, there is a gap in his record, whichhas no previous crimes of violence.

[76] Moreover, it would appear from reading his criminal record that Mr. Parsons has never received a significant custodial sentenceas a form of punishment. He has received a term of imprisonment in the community for 12 months by way of a conditional sentence. Hisrecord also reveals that he has received time served sentences, presumably for pre-trial custody. [77] Therefore, the sentence that I am about to impose will be Mr. Parsons’ first significant period of incarceration. Thus, theprinciple of restraint must be considered.

Section 718.2(

d) provides that an offender should not be deprived of liberty if a less restrictivesanction may be appropriate. It requires a sentencing judge to consider all available sanctions other than imprisonment that arereasonable in the circumstances. [78] These provisions exist to discourage imprisonment when another less onerous sanction will also satisfy the relevant sentencingprinciples. Restraint means that prison is the sanction of last resort.

Restraint also means that sentencing courts should seek the leastintrusive sentence and the lowest quantum that will achieve the overall purpose of being an appropriate and just disposition. [79] I am mindful, however, that as the gravity of the offence becomes more serious, such as here, particularly in crimes of violence,the mitigating effects decrease. [80] However, even with respect to the most serious violent offences, courts have been sensitive to the principle of restraint in casesinvolving youthful offenders. For example, in the decision of the Nova Scotia Court of Appeal in R. v.

Colley (NSCA), [1991] N.S.J. No. 62, at para. 23 the Court endorsed the notion that “if the need to protect society can be well served by a shortersentence as by a longer one, the shorter is to be preferred”.

Similarly, the Ontario Court of Appeal in Priest has expressed the view that: 23 Even if a custodial sentence was appropriate in this case, it is a well-established principle of sentencing laid down by this court that afirst 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. [81] I am mindful that this sentiment is often expressed in cases involving youthful offenders who have acted out of character incommitting serious violent offences, such as in the present case. [82] As stated, given that sentencing is highly contextual and necessarily an individualized process, the Court must impose asentence that addresses the two elements of proportionality, that is, the circumstances of the offence and the circumstances of theoffender, and thereby the court must reach a sentence that fits not only the offence, but also the offender.

The sentencing judge mustfashion a disposition from among the limited options available which take both sides of the proportionality inquiry into account. [83]

Section 718.2(

b) of the Criminal Code requires the Court to consider the principle that: a sentence should be similar to sentences imposed on similar offenders for similar offences committed in similar circumstances. [84] The principle of parity is qualified by the recognition that sentencing is an individualized process. Although it is alwaysdesirable to minimize disparity in sentencing of similar offences and similar offenders, there will undoubtedly be exceptional cases inwhich the disparity between sentences is justified.

The relationship between the principles of proportionality and parity was discussed bythe Supreme Court of Canada in Lacasse, at para. 53: 53 . . . Proportionality is determined both on an individual basis, that is, in relation to the accused him or herself and to the offencecommitted by the accused, and by comparison with sentences imposed for similar offences committed in similar circumstances.Individualization and parity of sentences must be reconciled for a sentence to be proportionate: s. 718.2(

a) and (

b) of the Criminal Code. [85] The determination of whether a sentence is fit also requires that the sentencing objectives and principles set out in s. 718 of theCriminal Code must be taken into account. Once again, however, it is up to the trial judge to weigh properly these various principles andobjectives, whose relative importance will necessarily vary with the nature of the crime and the circumstances in which it wascommitted. The principle of parity of sentences is secondary to the fundamental principle of proportionality, as explained in M.(C.A. )atpara. 92: 92 . . .

It has been repeatedly stressed that there is no such thing as a uniform sentence for a particular crime. . . .

Sentencing is aninherently individualized process, and the search for a single appropriate sentence for a similar offender and a similar crime willfrequently be a fruitless exercise of academic abstraction. [86] In reaching this difficult decision, I have considered and applied the statutory purposes and principles of sentencing whichsuggest a period of incarceration given that the seriousness of the crime is “unavoidable.” Indeed, this is one of those serious cases whereit is necessary to separate an offender for a significant period of incarceration because of the seriousness of the crime committed. [87] As stated, the mitigating factors in Mr.

Parsons’ case have been considered, and include: absence of violence in his record; hisdated criminal record; his guilty pleas, his acceptance of responsibility, his relatively positive Pre-Sentence Report, his sincereexpression of remorse, his potential for rehabilitation; and that his liberty had been restricted while on bail for an extended period oftime. [88] In my view, there can be no question that if this very serious offence, home invasion, had been perpetrated with a significantdegree of premeditation and planning, a far greater sentence than what I am about to impose would be warranted in order to protect thepublic. [89] Clearly, in serious cases such as this case, a sentence which emphasizes denunciation and deterrence must be imposed.

Thus,given the gravity of this offence, and the degree of Mr. Parsons’ responsibility in such circumstances, deterrence and separation fromsociety must be reflected in the sentence imposed. [90] I am mindful that the rehabilitation of Mr. Parsons must not be lost in the sentencing calculus, or role in fixing the length of any

prison term. The fact that the sentence being imposed is the first significant sentence of incarceration is also relevant. [ 91 ] In my view, based on all the circumstances surrounding the offence and the offender, Mr. Parsons, while he has never been sentenced to a significant term of imprisonment, one is necessary in this case due to the seriousness and gravity of the offence as well as the degree of Mr. Parsons’ responsibility.

However, it is neither necessary nor appropriate to separate him from society for too long so as to destroy any chance of rehabilitation. [ 92 ] Having considered all of the circumstances surrounding the offence and the degree of responsibility of Mr. Parsons, and having weighed and balanced the purpose and principles of sentencing that I am required to considered, I have arrived at the conclusion that the fit and proper sentence in this case is a global sentence of 54 months. This sentence, in my view, strikes a just proportion between the gravity the offence and the degree of responsibility of the offender, Mr.

Parsons. [ 93 ] Mr. Parsons will receive enhanced credit of 225 days, or 7.5 months, pursuant to s. 719 of the Criminal Code . Thus, the actual sentence, going forward from today, is 46.5 months. [ 94 ] Mr. Parsons, would you please stand. [ 95 ] Mr. Parsons, you heard everything that I have said here today. This was a difficult decision. I am going to impose an actual sentence going forward of 46.5 months. I will make the break and enter 46.5 months and the 264.1(1)(

a) will be 12 months, however, it will be concurrent as it arises from the same delict. Also, the DNA order will be granted, it is not being contested. There will also be a firearms prohibition. The Court makes the order that Mr. Parsons is prohibited from possessing any firearm, cross-bow, prohibited weapon, restricted weapon, prohibited device, ammunition, prohibited ammunition or an explosive substance for ten years. The order under s. 743.21 will be imposed. Mr. Parsons will abstain from any communication with the victim in this case, Karen Fredericks.

There is victim fine surcharge of $200.00 each for a total of $400.00 to be paid on or before June 29, 2028. [ 96 ] Mr. Parsons, I hope that you sincerely participate in any type of treatment program or counselling that is made available to you in the federal system, so that you will be able to get released and go back and start your life again. This was a serious offence. I realize you understand that.

I sincerely hope that you take advantage of the support of your mother, who has been here on more than one occasion, and your girlfriend, and participate in the programs that are offered to you and take meaningful engagement in those programs and hopefully things will work out for you in the future. Thank you, sir. [ 97 ] That is the sentence of the Court Frank P. Hoskins, JPC