HIS MAJESTY THE KING, – v. –, 2023 NBKB 228

IN THE COURT OF KING’S BENCH OF NEW BRUNSWICK TRIAL DIVISION JUDICIAL DISTRICT OF MONCTON His Majesty the King v. Janson Bryan Baker 2023 NBKB 228 MCR/23/2021 BETWEEN: HIS MAJESTY THE KING, – and – JANSON BRYAN BAKER DECISION ON SENTENCE BEFORE: Justice Robert M. Dysart AT: Moncton, New Brunswick DATE OF HEARING: December 4, 2023 DATE OF DECISION: December 8, 2023 (orally) APPEARANCES: Malika Levesque & Martine Cormier, for the Crown Charles Bryant, for the Accused

DYSART, J. (orally) INTRODUCTION [ 1 ] Following a trial by judge alone, this Court found Janson Bryan Baker guilty of four criminal offences in relation to a violent home invasion which occurred on January 5, 2021 at the Country View Motel in Steeves Mountain, New Brunswick. A

summary of the evidence and the Court’s reasons were set out in its oral decision of November 7, 2023. [ 2 ] Mr. Baker is now to be sentenced for those crimes. [ 3 ] By way of background, the Court heard testimony from some 12 witnesses for the Crown, including the victim of the home invasion, Mr. Gregory Lewis. The Defence did not lead any evidence at trial. [ 4 ] The evidence at trial established that Mr. Lewis was at home in his apartment at the Country View Motel early in the morning of January 5, 2021, when three men knocked at his door and, when he opened the door, sprayed a substance into his eyes.

They then forcibly broke into his apartment. Once inside, Mr. Lewis was repeatedly stabbed by one of the assailants while the others rummaged through his belongings. They robbed Mr. Lewis, taking some cash, two cell phones, his wallet and his vehicle – though it should be noted that the only charge of theft related to a sum of money. [ 5 ] The events in question lasted upwards of 20 minutes before the assailants fled. [ 6 ] A fingerprint identified on an envelope at the crime scene matched fingerprints belonging to the offender, Janson Bryan Baker. As well, Mr.

Baker was arrested on the following day outside an apartment complex in Amherst, Nova Scotia, where police later recovered one of Mr. Lewis’ cell phones and his driver’s license. [ 7 ] As a result of the repeated stabbings, Mr. Lewis was taken to hospital by ambulance where he was treated and where he remained for approximately one week. Photographs showing his injuries which were entered as exhibits at trial confirm the seriousness of the attack and the injuries inflicted upon Mr. Lewis, as do the photographs of the crime scene which show blood throughout the apartment. Mr.

Lewis was left with a prominent scar on his face, and he testified as to the emotional trauma these events caused him. [ 8 ] The Court was satisfied that the evidence at trial proved beyond a reasonable doubt that Janson Bryan Baker was one of the three assailants who broke into Mr. Lewis’ apartment on January 5, 2021. He was therefore found guilty of four offences: Count 1. Indictable break and enter of a dwelling house contrary to Section 348(1) (

a) of the Criminal Code ; Count 2. Indictable theft of a sum of money from Gregory Lewis while armed with a knife, contrary to Section 344(1) (

b) of the Criminal Code ; Count 3. Aggravated assault against Gregory Lewis by wounding him, contrary to Section 268(2) of the Criminal Code ; and Count 4. Indictable possession of a weapon for the purpose of committing an offence contrary to Section 88(2) (

a) of the Criminal Code . [ 9 ] While the Court was satisfied that Janson Bryan Baker was one of the three assailants, and that he was participating in a common unlawful purpose, the Court was not satisfied that the Crown had proven beyond a reasonable doubt that it was Mr. Baker who

wielded the knife and who stabbed the victim, Mr. Lewis. While that does not impact his guilt, it is a consideration going to his moral blameworthiness and the fit sentence that should be imposed. THE OFFENDER [ 10 ] Following his conviction Mr. Baker elected not to have a Pre-Sentence Report prepared. As a result, little is known about Mr. Baker or his background. [ 11 ] We do know that these are not his first convictions, however. The Crown entered into evidence the Prior Defendant History Report with respect to Mr.

Baker, which indicates that he is currently 27 years of age and was 24 years of age at the time of these offences, making him what might be described as a relatively youthful offender. [ 12 ] That document also lists several convictions between 2015 and 2022 as follows: 2015: Fraud; Mr. Baker was given a suspended sentence and 12 months’ probation. 2016: Robbery with a firearm; Theft under $5,000.00; Prowling; and Possession of break-in tools; Mr.

Baker was sentenced to four (4) years and three (3) months incarceration in a Federal Penitentiary, and he was issued a 10-year prohibition order against possessing weapons or ammunition. 2020 (Convicted 2022): Assault with a weapon; two counts of Theft under $5,000.00; Possession of stolen property; and Possession of a weapon in breach of a prohibition order; Mr. Baker was sentenced to two (2) years in prison for those offences. [ 13 ] It is noted that, with respect to those offences committed in 2020, Mr. Baker was not convicted and sentenced until 2022 – that is, after the events currently before the Court.

At the hearing, counsel for Mr. Baker initially argued that those convictions could not be considered by the Court, as he had not been convicted of them when he committed the current offences. After some discussion, counsel for the Crown raised the Court of Appeal’s decisions in R. v. Andrade , 2010 NBCA 62 and R. v.

Jollie , 2020 NBCA 58 . [ 14 ] In Andrade , supra, Justice Robertson conducted a full review of the so-called Coke rule, which provides that “a harsher sentence with respect to a second offence cannot be imposed unless the offender was convicted for the first offence prior to the commission of the second.” Justice Robertson concluded that the Coke rule was a common law rule of statutory

interpretation applicable to penal statutes that provide for a harsher penalty for second and subsequent offences. However, he held that it did not necessarily extend beyond that situation, writing at paragraph 20: “In my view, the notion that the prior conviction should not be treated as part of the offender’s criminal record for sentencing purposes, because he or she was not properly forewarned before committing the second or subsequence offence, is a theoretical construct too far removed from the realities of what is in the minds of repeat offenders and the purpose underlying the Coke rule.

What is or is not an aggravating factor and how one should deal with the offender’s prior criminal record is a matter better left to the sentencing judge having regard to the factual matrix under consideration.” [ 15 ] The parties are thus in agreement that the significance of Mr. Baker’s 2022 convictions for criminal acts committed in 2020, and which pre-date the matters currently before the Court, is a matter of discretion. OFFENDER’S ALLOCUTION [ 16 ] Mr. Baker was afforded an opportunity to address the Court before sentence was imposed.

He apologized to Gregory Lewis and accepted a share of responsibility for what occurred. He advised that, at the time, he was only 24 years of age and that he was addicted to drugs. He advised that he has been working on himself over the past couple of years while in prison and that he wants to change his life. He asked the Court not to give up on him as a lost cause. He wants a chance to be rehabilitated and to be reintegrated into society after he serves his sentence. He is looking to put his past criminal acts behind him. [ 17 ] Counsel for Mr.

Baker stated that his client was looking to take courses in Business from Athabasca University while in prison, having recently completed his GED. He stated that Mr. Baker is now medicated for ADHD. He stated that Mr. Baker has a strong support network from his family with whom he remains in close contact.

LAW AND SENTENCING PRINCIPLES [18] The purposes and principles of sentencing are set out in

section 718 of the Criminal Code. They include the followingobjectives: the need to denounce unlawful conduct; to deter the offender and others from committing offences; to separate offendersfrom society where necessary; to assist in the rehabilitation of offenders; to promote a sense of responsibility and acknowledgement inoffenders for the harm they have done; and to provide reparations for harm done. [19]

Section 718.1 provides that a sentence must be proportionate to the gravity of the offence and the degree of responsibility of theoffender. [20]

Section 718.2 also directs the Court to take into consideration aggravating and mitigating circumstances relating to the offence orthe offender. It sets out certain circumstances which shall be deemed to be aggravating. In addition, the

section provides that a sentenceshould be similar to sentences imposed on similar offenders for similar offences committed in similar circumstances. That is, it shouldrespect the parity principle. [21] As well, as indicated by the Crown in its Brief on Law,

Section 718.2(

a) of the Criminal Code calls on judges to consider,among a long list of factors, evidence that the offence had a significant impact on the victim, considering their age and other personalcircumstances, including their health and financial situation. MITIGATING AND AGGRAVATING FACTORS [22] Beginning with mitigating factors, the only thing that would amount to mitigation is Mr. Baker’s allocution. He apologized toMr. Lewis, and he accepted some responsibility for what occurred in this case.

He has shown some efforts at rehabilitation, and he hasexpressed a desire to continue to be rehabilitated. [23] As for aggravating factors, the Crown points to Mr. Baker’s past convictions for robbery and assault, and to the fact this was abreak and enter of an occupied dwelling house, as per

Section 348.1 of the Criminal Code. The evidence clearly satisfies me that theassailants knew the premises were occupied, as one of them sprayed Mr. Lewis with a substance and they then had to force their wayinto the apartment after Mr. Lewis was initially able to close and lock the door. There is no issue that serious violence was used againstthe occupant. I therefore agree that

Section 348.1 of the Criminal Code applies and that this is an aggravating factor. [24] As for Mr. Baker’s past criminal convictions, these are certainly aggravating, in particular the prior conviction for robbery whichattracted a sentence of approximately 4 years in prison. But I accept the Defence’s argument that to place too significant weight on the2022 convictions risks punishing Mr. Baker twice for those offences. [25] As well, while Mr.

Lewis did not submit a Victim Impact Statement in this matter, the Court received his evidence at trial thatthe events in question were extremely upsetting to him and have been something he has worked hard to block from his memory. I haveno hesitation in finding that the violent events of January 5, 2021 had a significant emotional impact on Mr. Lewis, over and above theserious physical injuries he sustained and the visible scarring to his face.

POSITIONS OF THE PARTIES [26] The Crown asks the Court to impose a global sentence of nine (9) years incarceration, broken down as follows: Count 1: Break and enter into an occupied dwelling-house: nine (9) years incarceration. Count 2: Robbery while armed with a weapon: seven (7) years incarceration, to be served concurrently. Count 3: Aggravated Assault: five (5) years incarceration, to be served concurrently.

Count 4: Possession of a Weapon: the Crown recommends a stay on this count due to the factual and legal nexus between thepossession of the knife and the commission of two of the offences, namely robbery with a weapon and aggravated assault, and theprinciple established in Kienapple v. R., (SCC), [1975] 1 SCR 729. [27] For its part, the Defence argues that Counts 1, 2 and 3 should each result in a sentence of five (5) years incarceration, to be served

concurrently. The Defence agrees that a stay should be entered with respect to Count 4 under the Kienapple principle. [28] I will now turn to each count and consider the appropriate jurisprudence and position of the parties. Count 1: Break and Enter into an Occupied Dwelling House [29] The Crown cites Justice Richard, as he then was, in R. v. Goulette, 2009 NBCA 49 , where the Court of Appealconsidered an appeal of a sentence imposed in a violent home invasion. Writing for the Court beginning at paragraph 39, Justice Richardconsidered the appropriate range for these types of offences: [39] In R. v.

Joyce (K.R.) (1998), (NB CA), 203 N.B.R. (2d) 1 (C.A.), [1998] N.B.J. No. 312 (QL), this Courtupheld a sentence of 11 years imprisonment for a home invasion that resulted in a charge of aggravated assault. Admittedly, there wereaggravating factors in that case that do not feature in the present matter, such as the use of weapons, the nature and extent of the injuriesinflicted on the victim and Mr. Joyce’s record of previous convictions involving violence.

However, Drapeau J.A. (as he then was) notedthat the “first and foremost” of the many aggravating features of the case was the fact it constituted a home invasion (para. 37), which hedescribed as “every homeowner's worst nightmare” (para. 3). In dismissing the appeal against sentence, the Court mentioned the six-yearterm of imprisonment imposed upon a co-accused who benefitted from extenuating circumstances, including his guilty plea early in theprocess, his less significant role in the assault and his less extensive record. [40] In R. v.

Ivan (S.A.) (2000), 2000 NBCA 24 , 230 N.B.R. (2d) 313 (C.A.), [2000] N.B.J.

No. 399 (QL), this Courtincreased a sentence of imprisonment imposed upon conviction for robbery committed during a home invasion from four to six years.The Court described the original sentence as inordinately low considering the serious nature of the offence and the record of theoffender. [41] In Oulton, an appeal against a sentence of imprisonment of seven years for a home invasion break and enter was dismissed, thisCourt holding that the sentence was fit even though the sentencing judge had not given the offender credit for considerable time served inpre-sentencing custody.

In upholding the sentence, Ryan J.A. noted that the offender “was an escapee from the Dalhousie jail at the timeof the home invasion; he was armed and accompanied by two men with weapons commonly used for murder”, adding that “[o]ne of themen held a revolver against the head of the householder while the second man threatened to cut a female guest [and that] [t]he appellantwore a disguise and has a criminal record” (para. 17). [30] Justice Richard then went on to state: “Although all cases are different and each requires its own assessment of the principles ofsentencing in light of its particular facts, the message is clear: home invasion type offences, in all but exceptional circumstances, willattract lengthy terms of imprisonment in order to satisfy the principles of sentencing.” [31] The Crown also cited the more recent decision of R. v.

Christopher Ward, 2019 NBQB 68 , where Justice Fergusonimposed sentence in a fairly similar factual situation to the present case. Mr. Ward, along with two other accomplices, decided to breakinto the victim’s home to rob that person of money and marijuana. They decided to bring a rifle with them as a form of intimidation toget the occupant to comply with their demands. One of the three drove, while Ward and the third individual entered the dwelling house,with that other individual carrying the rifle. Neither knew the rifle was loaded.

During the home invasion, the gun dischargedunintentionally, striking the homeowner in the leg. [32] Justice Ferguson canvassed the jurisprudence surrounding home invasion cases, concluding that, “the centre of the sentencerange for home invasions where the accused knew the occupants were at home, or were reckless as to whether they were home and usedor threatened violence is in the five to six-year range.” [33] Justice Ferguson imposed a six-year sentence in that case for the home invasion, but noted that there were significant mitigatingcircumstances, including that the offender entered an early guilty plea and was an indigenous offender with a very difficult upbringing.

Here, no such mitigating factors exist. [34] I also note that in the Ward decision, the firearm went off accidentally or unintentionally. In the case before this Court, theviolence inflicted against Mr. Lewis was prolonged and intentional.

[35] In all the circumstances, the Crown submits that a sentence of nine (9) years is appropriate for the home invasion. That, ofcourse, is towards the high end of the range. [36] The Defence does not dispute the jurisprudence tendered by the Crown, nor that home invasion offences are treated with “theutmost seriousness” by our Courts and will result in a lengthy jail term. [37] However, the Defence distinguishes the present case from some of those relied upon by the Crown, principally on the basis thatthe Court was not satisfied beyond a reasonable doubt that Mr.

Baker was the principal assailant, i.e. the one who carried the knife andpersonally inflicted the wounds to Mr. Lewis. This, the Defence argues, diminishes Mr. Baker’s moral blameworthiness by comparisonand justifies a sentence in the mid-range of five years. The Defence cites Justice Drapeau from the Joyce decision, supra, where “theCourt mentioned the six-year term of imprisonment imposed upon a co-accused who benefitted from extenuating circumstances,including his guilty plea early in the process, his less significant role in the assault and his less extensive record.” [38] Of course, in the present case, Mr.

Baker does not benefit from an early plea of guilty, which would be a mitigating factor, andnor can he legitimately argue that his criminal record should result in a lower sentence. [39] Mr. Baker was one of three individuals who violently broke into Mr. Lewis’ apartment and seriously assaulted him. This type ofoffence is indeed “every homeowner's worst nightmare,” as Justice Drapeau described it. I am in agreement that, had the Crownestablished beyond a reasonable doubt that Mr.

Baker wielded the knife used in the commission of the offence, a sentence at the veryupper limit, and likely beyond the nine (9) years requested by the Crown, would be justified.

Here, though, the sentence must becommensurate with the moral blameworthiness established by the evidence, and so the sentence must reflect that slightly lessened moralculpability in this case. [40] In all the circumstances and taking into account the factors listed in Sections 718, 718.1 and 718.2 of the Criminal Code, theaggravating factors in this case, the few mitigating factors, and the jurisprudence relating to home invasions in this Province, I amsatisfied that a fit sentence for Count 1 of the Indictment is a period of imprisonment of eight (8) years.

Count 2: Robbery with a Weapon [41] The Crown seeks seven (7) years incarceration for this offence, and cites R. v. Basque (G.) (1999), (NBCA), another decision penned by Justice Drapeau, where he wrote at paragraph 30: This court has recognized that robbery is a very serious offence and that Parliament has deemed fit to acknowledge this gravity byproviding that every one who commits robbery is guilty of an indictable offence and liable to life imprisonment.

Indeed, this court hasapproved a range of sentences from three to eight years of imprisonment in a penitentiary for this offence when committed by someoneother than a young offender. [42] The Crown argues that, given that Mr. Baker already has a conviction for robbery dating from 2016 for which he received a four-year sentence, the need for both general and specific deterrence justifies a sentence at the higher end of the range. The Crown also notesthat with respect to that prior conviction, Mr. Baker had entered an early guilty plea, such that the prior sentence was at the very bottomof the range.

The Crown argues that the step principle should be considered, and that specific deterrence should be a key consideration. [43] The Defence has not provided the Court with any cogent rationale for imposing the lesser sentence of five (5) years which is setout in their Brief on Law. [44] In the totality of the evidence and given the need for specific deterrence in this case, I am of the view that a fit sentence on thesecond count is seven (7) years, to be served concurrently, given that this conviction arises from the same transaction or series of eventsas Count 1.

Count 3: Aggravated Assault [45] In this case, both the Crown and the Defence have suggested a sentence for the aggravated assault of five (5) years incarceration.

[46] As noted in the Crown’s Brief on Law, the Courts in New Brunswick have generally set a range of fit sentences for most cases ofaggravated assault of between three (3) and eight (8) years. This comes from a decision of the late Justice Walsh in R. v Thompson,2017 NBQB 81 . Of course, longer sentences can be imposed for more egregious cases, up to the maximum of 14 yearsimprisonment, as set out in the Criminal Code. [47] Had the Court been convinced beyond a reasonable doubt that Mr.

Baker was the assailant who wielded the knife in this case, Iwould not accept what is in effect a joint recommendation for five (5) years. The sentence would be at the higher end of the range. However, in the circumstances, I am satisfied that the five (5) years incarceration suggested for the aggravated assault in this case is a fitsentence. Again, because it arises from the same series of events, it will be served concurrently.

Count 4: Possession of a Weapon [48] As noted, both the Crown and the Defence submit that the sentence with respect to the last count should be stayed in accordancewith the Kienapple principle, which holds, generally, that an accused should not be convicted of multiple offences arising for a singlecriminal act. [49] Here, Mr. Baker has been convicted of both robbery with a weapon and aggravated assault – both of which involved the use ofthe knife.

As stated by the Crown in its Brief on Law: [G]iven the factual and legal nexus between the charge of possession of a weapon for the purpose of committing an indictable offenceand that of the aggravated assault – as well as that of the robbery with a knife – the Crown agrees that the principles set out in Kienapplev R apply. Consequently, the Crown respectfully proposes that a stay be entered with respect to this count. [50] The Defence agrees, as does the Court. [51] As a result, the Court will issue a stay with respect to Count 4 of the Indictment.

CREDIT FOR PR-SENTENCE DETENTION [52] According to the information submitted by the Crown, Mr. Baker had been, until quite recently, serving a federal sentence inrelation to his 2022 convictions, outlined above. It is not disputed that Mr. Baker was eligible for a statutory release from prison inrelation to that sentence on October 7, 2023. [53] Mr. Baker has been detained since that date, and he is therefore entitled to a so-called Summers credit at one point five days perone day of detention. As of today’s date, he has been detained 62 days, resulting in a credit of 93 days.

That will be reduced from thetime he has to serve. VICTIM FINE SURCHARGE [54] Given that Mr. Baker has been incarcerated for some time, the Crown is not seeking a Victim Fine Surcharge in this case. I agreethat in the circumstances of this case, it is appropriate to waive that surcharge.

ANCILLARY ORDERS [55] Because of the nature of the offences involved in Counts 1, 2 and 3 which are designated offences under the Criminal Code, theCourt is also obliged to impose the following ancillary orders: [56] First, a lifetime Weapons Prohibition order under s. 109 of the Criminal Code; and secondly, an order pursuant to Section487.051(1) of the Criminal Code for the taking of bodily substances from the offender for forensic DNA analysis.

DISPOSITION [ 57 ] Janson Bryan Baker, for your participation in the violent home invasion, robbery and aggravated assault of January 5, 2021 against Gregory Lewis, I hereby sentence you to the following: As to Count 1: Break and enter into an occupied dwelling-house: eight (8) years incarceration less 93 days to account for your Summers credit. As to Count 2: Robbery while armed with a weapon: seven (7) years incarceration, to be served concurrently.

As to Count 3: Aggravated Assault: five (5) years incarceration, to be served concurrently. [ 58 ] I am issuing a stay with respect to Count 4, Possession of a Weapon, pursuant to the Kienapple principle. [ 59 ] I am also imposing the following ancillary orders: • a lifetime Weapons Prohibition order under s. 109 of the Criminal Code ; and • an order pursuant to

Section 487.051(1) of the Criminal Code for the taking of bodily substances from you for forensic DNA analysis. [ 60 ] Mr. Baker, you have committed serious, violent crimes. Such criminal acts cannot be tolerated in a civilized society, and the sentence imposed upon you by this Court is intended to reflect that. Your actions caused significant pain and trauma to Mr. Lewis.

You are fortunate that he did not die from his injuries, or you would be facing a much longer period of incarceration, I assure you. [ 61 ] You have been in trouble with the law for nearly all of your adult life, it would seem, and the direction your life has taken is extremely worrisome. I am sure that you have caused immeasurable pain and worry to your family, who continue to support you. [ 62 ] You have indicated your desire to achieve rehabilitation and to be reintegrated into society following the completion of your sentence.

I am encouraged to learn that you have taken advantage of programs within the prison system to address your drug addiction issues and to improve your education. Those are steps in the right direction. That said, your criminal history and your violent acts, even after relatively lengthy prison sentences, raises serious questions about whether rehabilitation will be achievable. Whether it happens, Mr. Baker, is now up to you. DATED at Moncton, New Brunswick this 8 th day of December 2023. _____________________________________ Robert M. Dysart, Judge of the Court of King’s Bench of New Brunswick