Her Majesty the Queen v. Brown

[Indexed as: R. v. Brown]

Ontario Reports

Court of Appeal for Ontario,

Juriansz, Rouleau and Hourigan JJ.A.

May 22, 2015

126 O.R. (3d) 797 | 2015 ONCA 361

Case Summary

Criminal law — Sentencing — Youthful first offender convicted of offences committed during extremely violent home invasion — Trial judge sentencing accused to seven years' imprisonment for robbery, robbery with firearm and aggravated assault and two years consecutive for unlawful possession of firearm — Trial judge erring in finding that general deterrence and denunciation were primary sentencing considerations although their weight increases with seriousness of offences — Individual deterrence and rehabilitation remain primary objectives in sentencing youthful first offender — Trial judge erred by failing to impose lowest sentence possible consistent with gravity of offence and offender's role — Sentence of seven years for non-firearms offences being fit given horrific nature of aggravated assault during home invasion but totality of nine years excessive as accused was youthful first offender — Sentence for unlawful possession of firearm made concurrent to seven-year sentence.

The accused, an 18-year-old first offender, was convicted of offences committed during an extremely violent home invasion during which the female resident was beaten with the gun, bound and hit in the face and body with a golf club. The trial judge sentenced him to seven years' imprisonment for robbery, robbery with a firearm and aggravated assault, three years concurrent for uttering threats and forcible confinement, and two years consecutive for unlawful possession of a firearm. The accused appealed.

Held, the appeal should be allowed.

The trial judge erred in finding that the primary sentencing considerations were denunciation and general deterrence, although they were to be weighed heavily given the horrific nature of the aggravated assault. Keeping those factors in mind, individual deterrence and rehabilitation remain the primary objectives in sentencing a youthful first offender, and the trial judge should have imposed the shortest term of imprisonment that was proportionate to the crime and the accused's responsibility. The seven-year sentence for the non-firearms offences was entirely fit given the range of appropriate sentences for home invasions being four-five years at the low end and 11-13 years at the high end. The sentence for unlawful possession of a firearm should be made concurrent to the other sentences, resulting in a reduction of the total sentence from nine years to seven years.

R. v. Priest (1996), 1996 CanLII 1381 (ON CA), 30 O.R. (3d) 538, [1996] O.J. No. 3369, 93 O.A.C. 163, 110 C.C.C. (3d) 289, 1 C.R. (5th) 275, 32 W.C.B. (2d) 191 (C.A.); R. v. Thurairajah (2008), 89 O.R. (3d) 99, [2008] O.J. No. 460, 2008 ONCA 91, 229 C.C.C. (3d) 331, 233 O.A.C. 265, 76 W.C.B. (2d) 721, consd

Other cases referred to

R. v. Mann, [2010] O.J. No. 1924, 2010 ONCA 342, 261 O.A.C. 379, 88 W.C.B. (2d) 118; R. v. Wright (2006), 2006 CanLII 40975 (ON CA), 83 O.R. (3d) 427, [2006] O.J. No. 4870, 218 O.A.C. 215, 216 C.C.C. (3d) 54, 72 W.C.B. (2d) 101 (C.A.) [page798]

Statutes referred to

Criminal Code, R.S.C. 1985, c. C-46, ss. 85 [as am.], 91(1), 718.1 [as am.]

APPEAL by the accused from the sentence imposed on December 2, 2011 by MacKenzie J. of the Superior Court of Justice, sitting with a jury.

Frank Addario, for appellant.

John Patton, for respondent.

1BY THE COURT: -- The parties dispute the sentencing principles that govern youthful first-time offenders. The appellant, as an 18-year-old first offender, committed a home invasion marked by horrific violence. He was convicted of robbery, use of a restricted weapon during a rough, forcible confinement, uttering a death threat, aggravated assault and unauthorized possession of a firearm, and sentenced to a total of nine years' imprisonment.

2In arriving at the sentence, the sentencing judge held that "the concept of general deterrence and denunciation is paramount. It is not exclusive but it is paramount, it is the primary consideration". Counsel for the appellant submits this is an error of law. He asserts that specific deterrence and rehabilitation are always the paramount sentencing objectives in the case of a youthful first-time offender. In advancing the argument, he relies on what Rosenberg J.A. said in R. v. Priest (1996), 1996 CanLII 1381 (ON CA), 30 O.R. (3d) 538, [1996] O.J. No. 3369 (C.A.), at para. 17:

The primary objectives in sentencing a first offender are individual deterrence and rehabilitation. Except for very serious offences and offenses involving violence, this court has held that these objectives are not only paramount but best achieved by either a suspended sentence and probation or a very short term of imprisonment followed by a term of probation.

3In Priest, the sentencing judge imposed a one-year term of imprisonment on the young first-time offender after he pleaded guilty to breaking into a convenience store and stealing goods worth $2,700. The judge considered that general deterrence was the paramount consideration because of the prevalence of breaking and entering in the community. On appeal, the focus of the court in Priest was on the sentencing of youthful first-time offenders in cases in which dispositions other than imprisonment could and should be considered.

4By contrast, this case involves the sentencing of a youthful first-time offender for an extremely serious offence for which a lengthy penitentiary term is warranted. The issue is what factors should govern the determination of the length of imprisonment [page799] imposed. The more apt authority, in our view, is R. v. Thurairajah (2008), 89 O.R. (3d) 99, [2008] O.J. No. 460, 2008 ONCA 91, which concerned the sentencing of a youthful first offender for a particularly serious sexual assault. Doherty J.A., writing for the court, said [at paras. 41 and 42]:

Generally speaking, sentences imposed on young first offenders will stress individual deterrence, where necessary, and rehabilitation. General deterrence will play little, if any, role in fashioning the appropriate sentence in this category of offender in most cases: R. v. Ijam (2007), 2007 ONCA 597, 87 O.R. (3d) 81 at 93-94 (C.A.). Serious crimes of violence, particularly sexual assaults, do provide an exception to the general rule described above. While all of the principles of sentences remain important, including rehabilitation, for serious crimes involving significant personal violence, the objectives of denunciation and general deterrence gain prominence: R. v. Ijam, supra; R. v. Wells (2000), 2000 SCC 10, 141 C.C.C. (3d) 368 at para. 26 (S.C.C.).

The emphasis to be placed on denunciation and to a lesser extent general deterrence, grows with the seriousness of the particular circumstances surrounding the sexual assault for which an accused, even a young accused, is being sentenced.

5In our view, while individual deterrence and rehabilitation are the primary objectives in sentencing a first offender, the importance and weight of other factors increase with the seriousness of the crime. This approach respects the fundamental principle of sentencing stated in s. 718.1 of the Criminal Code, R.S.C. 1985, c. C-46: "a sentence must be proportionate to the gravity of the offence and the degree of responsibility of the offender".

6With this in mind, we turn to the crime for which the appellant was sentenced. The appellant, together with two others, invaded a home looking for handguns. The vulnerable female resident was struck in the head multiple times with a pistol. After she had fallen, she was kicked repeatedly in the back of the head and back. Her wrists were bound with an exercise bungee. She was struck multiple times in the face and body with a golf driver. When the golf club broke she continued to be "clobbered" with it on her face, head and hands. The assailants, who had brought a gas can with them, poured gasoline on her and threatened to ignite it. They beat her further before fleeing with long guns. The resident was left with serious and permanent physical and psychological injuries. In describing the crime, the sentencing judge said the "mind boggles" at the "horrendous brutality of this aggravated assault".

7The sentencing judge's description of the crime is apt. General deterrence and denunciation had to be weighed heavily in sentencing this serious violent crime. However, it was an error to say these factors had become "the primary consideration". The [page800] primary objectives in sentencing the youthful first-time offender remained individual deterrence and rehabilitation. In balancing the factors, the sentencing judge still had to impose the shortest term of imprisonment that was proportionate to the crime and the responsibility of the offender, given his young age.

8It is clear the sentencing judge, while considering general deterrence and denunciation to be the primary consideration, did attach significant weight to the appellant's young age. He imposed a sentence of seven years for the convictions robbery, robbery with a firearm and aggravated assault. For the convictions of uttering threats and forcible confinement, he imposed sentences of three years to be served concurrently with the seven-year sentences. For the unlawful possession of a firearm, he sentenced the appellant to two years to be served consecutively to the seven-year sentences, resulting in a total sentence of nine years.

9The range for home invasions is four to five years at the low end, and up to 11 to 13 years at the high end: see R. v. Wright (2006), 2006 CanLII 40975 (ON CA), 83 O.R. (3d) 427, [2006] O.J. No. 4870 (C.A.); R. v. Mann, [2010] O.J. No. 1924, 2010 ONCA 342. The seven-year sentences for the robbery with a firearm and aggravated assault were entirely fit and shorter sentence for these offences would not reflect their gravity. The two-year sentence for unlawful possession of a firearm contrary to s. 91(1) of the Criminal Code was also fit considering how the gun was used, when considered on its own. However, the effect of the two-year consecutive sentence resulted in a total sentence of nine years. Section 91(1), unlike s. 85 of the Criminal Code, does not require a consecutive sentence.

10We would vary the sentence by making the sentence for unlawful possession of a firearm concurrent to the other sentences thereby reducing the appellant's total sentence from nine years to seven years to properly reflect that individual deterrence and rehabilitation remained the paramount factors on his sentencing.

11The appeal is allowed and the sentence varied as indicated.