R. v. Hopwood, 2019 ONCJ 450

Court File and Parties

Court File No.: Ottawa 17-R1971 Date: 2019-06-25 Ontario Court of Justice

Between: Her Majesty the Queen — and — Jake Hopwood

Before: Justice David A. Berg

Counsel:

• Matthew Geigen-Miller, for the Crown
• Dominic Lamb, for the Defendant

Reasons for Sentence

Introduction

1On April 3, 2019, after a multiple day trial, I found Jake Hopwood guilty of a series of offences stemming from a home invasion that occurred on September 4, 2014 as well as an attempt to obstruct justice dating to July 8, 2017. I acquitted him of charges related to another extremely violent incident that occurred just north of Toronto on September 6, 2014.

2The matter then went over to May 7, 2019 for submissions on sentence. That day, as well as hearing the arguments of both counsel, I was advised that Mr. Hopwood wished to enter guilty pleas to one count of aggravated assault arising from an incident that occurred on February 1, 2018 and one count of obstruct peace officer dating to July 23, 2018; both of these offences arose while he was incarcerated pending this trial. Those pleas were entered and I am thus sentencing him today on these unrelated charges as well.

3It is my intention to proceed in the following fashion. I will first briefly review the respective positions of the parties. I will then make reference to the biographical information that I have been provided with about Mr. Hopwood. This will be followed by separate analyses dealing with the appropriate sentence for the offences related to the home invasion, for the attempt to obstruct justice, for the aggravated assault at the detention centre, and for the obstruct peace officer at that facility.

Position of the Parties

4The Crown is seeking a global sentence of fifteen years of incarceration less credit for pre-sentence custody. Mr. Geigen-Miller breaks this down as follows:

• 12 years for the home invasion charges (i.e., robbery, forcible confinement, kidnapping, extortion, and assault causing bodily harm)
• 2.5 years consecutive for the attempt to obstruct justice
• 18–24 months consecutive for the aggravated assault
• 30 days concurrent for the obstruct peace officer

5The defence is seeking a global sentence of roughly six and a half years of incarceration less credit for pre-sentence custody. Mr. Lamb breaks his position down as follows:

• 5 years for the home invasion
• 4–6 months consecutive for the attempt to obstruct justice
• 1 year consecutive for the aggravated assault
• 30 days concurrent for the obstruct peace officer

6Mr. Hopwood was arrested on October 28, 2014. As of today, June 25, 2019, he has been in pre-sentence custody for one thousand seven hundred and four days. When one enhances this number by a factor of 1.5, Mr. Hopwood has served the equivalent of two thousand five hundred and fifty-six days or seven years exactly.

Who is Jake Hopwood

7An initial comment. Given the very serious nature of the offences committed by Mr. Hopwood against Mr. Huynh, I was extremely surprised to learn that he has no prior criminal record. Mr. Hopwood was twenty-five years old at the time of the home invasion. He has been in custody since his arrest.

8Jake Hopwood was born in Jamaica. He came to Canada with his family when he was ten years old. His mother was a single parent with five children, one now deceased. As he described to the probation officer who prepared the Pre-Sentence Report, the family resided in "a high crime, low income, and gang-affiliated neighbourhood in Toronto". That being said, it seems clear from that Report that Mr. Hopwood's mother provided her children with a stable childhood and served as a positive role model. Over the past four years, he has been in a relationship with a woman who has two daughters from a previous relationship. Obviously, given that he has been in custody for this entire time, their association has been somewhat limited.

9He advised the report writer that he has a Grade 11 education and is apparently working on some further credits while in custody. He has also completed some non-academic courses in jail: anger management, anti-criminal thinking, and Bible studies. He has worked as a mover for a moving company, a skid and pallet repair man, a hot walker at a race track and, most significantly, as a sales representative and then sales manager for three and a half years at an energy company in Alberta.

The Home Invasion

10I found Mr. Hopwood guilty of robbing Justin Huynh, of forcibly confining him, of kidnapping him, of attempting to extort money from his father, and of assaulting him and thereby causing him bodily harm. These events all occurred between September 4 and 6, 2014.

11Mr. Hopwood was part of a small group of people who formed a plan to connive their way into the apartment of Mr. Huynh, a young, intellectually challenged man living on his own. The other participants in this criminal endeavour were Laura Brahaney, Lisa Woolley, and Traevonne Mattis. It is not entirely clear to me whether everything that occurred was part of the original plan, but little turns on that point. As I indicated in my judgement:

I cannot determine, on the basis of the evidentiary record, whether there was a hierarchy amongst Mr. Huynh's assailants (here I include Ms. Woolley). That record shows that Mr. Hopwood was involved in all aspects of this incident from the initial robbery to the last assault in the woods and everything in between. We are well beyond "some evidence" here. At any given point, he was either a principle, an aider by his very presence, and/or intentionally participating in a common purpose. It would be artificial on the facts before me to conclude that Mr. Hopwood played a lesser role in this incident. This is not a case where an accused participated in only a limited aspect of an incident. This is not a case where Mr. Hopwood passively acquiesced to aspects of what was going on. Mr. Hopwood was fully invested in all that occurred.

12Ms. Brahaney and Ms. Woolley each began a separate on-line correspondence with Mr. Huynh. While he can easily be categorized as a vulnerable person as a result of his deficits, there is no evidence before me to suggest that he was targeted as a result of them. The nature of the communications between Mr. Huynh and the two women seems to have been mutually flirtatious. Occasionally, one of the women would ask Mr. Huynh for money and he would sometimes comply with the request; the amounts were not large. Eventually, one of the women arranged to meet Mr. Huynh at his apartment. Mr. Huynh was surprised when it was the other woman who actually showed up on September 4 but, nonetheless, brought her into his building and up into his apartment. She quickly made an excuse and returned to the entrance of the building, leaving Mr. Huynh in his apartment, the idea being that she would return momentarily. That she did, but accompanied by Mr. Mattis and Mr. Hopwood. Ms. Woolley never entered the building.

13From the time that Mr. Hopwood and the others entered Mr. Huynh's apartment until the police were called to where Mr. Huynh turned up in Gananoque, forty-two hours elapsed.

14Mr. Huynh's evidence does not allow me to determine the exact sequence of what occurred after Mr. Hopwood et al. entered Mr. Huynh's apartment. In no particular order, I note that Mr. Huynh was struck by all three of his assailants. The blows drew blood. He was ordered to sit down and be silent. They demanded the P.I.N. for his bank card. They removed from the apartment any object that they thought might have some value (e.g., his identification documents, his cell phone, loose change, a video game console and game cartridges, a television, and one hundred and fifty video tapes).

15They then forced him to accompany them to their vehicle and drove him to a park where he was assaulted again. They there told him that they wanted $300,000. He was then taken to a gas station and required to use a pay phone in an attempt to contact his father in order to convey the ransom demand. He was told that he would be killed if he did not assist them in this endeavour; they may have threatened him with death at other points during his ordeal. When Mr. Huynh's father could not be reached, they took him to Ms. Brahaney's house in Ottawa. He was taken into the basement laundry room and placed inside a dog cage.

16The dimensions of that cage did not allow him to stand or stretch out. He estimated that he was kept caged for two days. He was fed by them, however, they forced him to urinate into a bag. They continued to hit him while asking about money. They threatened to kill or mutilate his two cats who were back at his apartment. They threatened to hurt his mother and later told him that she was already dead. He recalled that at one point, they took him out of the cage and taped him by the wrists and ankles to a chair. There was also an incident in the basement when the two men and Ms. Brahaney had him stand and poured bleach and gasoline on his naked torso and then scrubbed him with a brush. It seems that Ms. Brahaney then punched him in the face and sprayed a noxious substance in his eyes.

17Finally, his captors drove Mr. Huynh to a remote spot in the Kingston-Gananoque region. Upon reaching the forested area, he was told to remove his outer clothing and footwear; he was now wearing only his undergarments. Mr. Hopwood and Mr. Mattis took him some distance into the forest. Then, the taller of the two men, Mr. Mattis it seems, choked Mr. Huynh into unconsciousness and left him lying in the woods. When he regained consciousness, he wandered for a while until he came upon a house. He rang the doorbell. The people at that house contacted the police. Some of these people testified at this trial.

18They described Mr. Huynh as being barefoot, distraught and tearful, wet and very dirty, one eye swollen shut with swelling elsewhere on his face. He had been struck in the mouth and blood was dripping from it, he had abrasions and chaffing around his wrists, and he displayed bruising on his body. He complained of his neck being sore and one of the witnesses, a registered nurse, noted that it was reddened and swollen. One of the witnesses testified that she thought that Mr. Huynh was a fourteen year old boy; he was small and fragile and seemed possibly developmentally delayed.

19The Crown filed as an exhibit a series of photographs taken of Mr. Huynh on September 6, 2014 by the Ontario Provincial Police. They well document the swelling, bruises, cuts, and abrasions that he sustained as a result of this ordeal.

20I have been provided with the victim impact statements of Mr. Huynh and his mother. I have, of course, read both of them. The vulnerability of Mr. Huynh is well attested by those documents.

21As I have indicated, the Crown is seeking a sentence of twelve years for this home invasion, while the defence is asking me to sentence him to five years of jail. I am of the opinion that the starting point must be an analysis of what sentence was received by Mr. Hopwood's co-accused, Mr. Mattis.

22Mr. Mattis pleaded guilty to the following offences and received the following sentences:

1. Robbery: 66 months (and 12 months pre-sentence custody)
2. Unlawfully in a dwelling: 66 months concurrent
3. Forcible confinement: 66 months concurrent
4. Forcible confinement: 2 years concurrent
5. Conspiracy: 66 months concurrent
6. Assault causing bodily harm: 2 years concurrent
7. Robbery: 2 years concurrent

With the credit for the twelve months of pre-sentence custody, Mr. Mattis received the equivalent of a sentence of seventy-eight months or six and a half years in jail.

23During the course of this trial, the Crown had a transcript of Mr. Mattis' guilty plea entered as an exhibit. From that transcript, I learn that counts 1, 2, 3, and 5 were based on the charges arising from the home invasion of Mr. Huynh's apartment. The other counts to which Mr. Mattis pleaded guilty were in reference to the incident of which I acquitted Mr. Hopwood. The transcript includes the facts to which Mr. Mattis pleaded guilty with respect to Mr. Huynh. They are substantially similar to those upon which I found Mr. Hopwood guilty.

24I am well aware that Mr. Mattis did not plead guilty to kidnapping and extortion; I did find Mr. Hopwood guilty of those two charges. I am well aware that unlike Mr. Mattis, Mr. Hopwood was not found guilty of conspiracy to commit an indictable offence; he did not face that charge at this trial.

25Neither Mr. Mattis nor Mr. Hopwood had criminal records prior to sentencing. Both were young men: Mr. Mattis was eighteen years old at the time of these offences while Mr. Hopwood was twenty-five years old. They came from the same neighbourhood in Toronto and have similar backgrounds. It strikes me that the principle of parity is very firmly engaged here.

26Section 718.2(b) Criminal Code mandates that "a sentence should be similar to sentences imposed on similar offenders for similar offences committed in similar circumstances". This principle has been characterized as "critical to the integrity of the sentencing regime that Parliament has chosen" (R. v. Arcand, 2010 ABCA 363 at paragraph 81). The Ontario Court of Appeal, in the decision of R. v. Mann, 2010 ONCA 342 at paragraph 16, adopted the following passage from a leading text on sentencing:

The principle of parity has developed to preserve and ensure fairness by avoiding disproportionate sentences among convicted persons where, essentially, the same facts and circumstances indicate equivalent or like sentences.

27In my opinion, the six and a half year sentence of Mr. Mattis is where the analysis must begin. Begin, because, unlike Mr. Hopwood, Mr. Mattis did not go to trial but entered pleas of guilt. Mr. Hopwood is not to be punished for going to trial, however, he does not, on the other hand, benefit from the mitigation of pleading guilty.

28How does a plea of guilt come to be a mitigating factor in a sentencing? The Prince Edward Island Court of Appeal stated the following in R. v. Doucette, 2015 PECA 5 (see, too [R. v. Holder, 1998)):

[20] There is truth in the old adage that one who pleads not guilty seeks justice while one who pleads guilty seeks mercy. Absent good reason, a guilty plea must be taken into account in mitigation of sentence (R. v. Macki, 2001 BCSC 427, at para. 55). There are two schools of thought as to why a guilty plea is a mitigating factor. The first is that a guilty plea is an expression of remorse and an acceptance of responsibility. The more pragmatic rationale is that it saves the justice system the time and expense of a trial. These two rationales were articulated by MacDonald J. in R. v. Bruce (1982), 35 Nfld. & P.E.I.R. 530 (PEICA), at para. 14:

A second mitigating factor referred to by the trial judge was that she had pleaded guilty thereby saving a lengthy trial and this could also be taken as a sign of her remorse. Numerous courts have held that a guilty plea should be taken into consideration on a sentencing: R. v. Johnston and Tremayne, [1970] 4 C.C.C. 64 (Ont. C.A.); R. v. Carriere (1952), 14 C.R. 391 (Que. C.A.). It has also been stated that a guilty plea should be given less weight where there is such a preponderance of evidence against the accused that the only reasonable choice or option left open is a plea of guilty. R. v. Spiller, [1969] 4 C.C.C. 211 (B.C.C.A.). In the present case the respondent had signed a statement in which she had admitted her guilt and it could be said that her only choice was to plead guilty. However, if the rationale for a policy of decreasing sentence where a guilty plea had been entered, is based on the consideration of the time saved by not having a trial, I am unable to accept the proposition that there should be less weight given to a guilty plea from a person who has been inescapably caught. I would agree with the trial judge that the guilty plea by the respondent should be a mitigating circumstance. ...

[21] In my view either or both rationales may be used to justify a reduction in sentence. The amount of credit engendered by a guilty plea however depends on the circumstances of the case. Some courts have held that a guilty plea can justify a discount of up to 25 to 33% (R. v. Weiler). That does not mean, however, that a guilty plea merits such a discount in every case (R. v. Lyons, [1991] P.E.I.J. No. 10 (PEICA)). There may well be cases where there is good reason to grant no reduction for a guilty plea. For example, a guilty plea entered at trial after the Crown has called some or all of its case is a recognition of the inevitable and not an expression of remorse nor does it save any appreciable time and expense. Such a guilty plea would merit little or no reduction in sentence.

[22] Where a reduction in sentence is warranted, it is not simply a matter of a mathematical calculation. There are many factors to consider including, but not limited to, as the strength of the Crown's case, the nature of the case, the timing of the guilty plea, whether the guilty plea saves a vulnerable victim from testifying, and the circumstances of the offender including his criminal record to mention a few.

29Relevant here are the comments of Justice H.F. Pringle in R. v. Berquas, 2018 ONCJ 623 at paragraphs 38 ff.:

[38] Here in Canada, Parliament has left the degree of reduction to the discretion of sentencing judges. However, in my view for a guilty plea to have any true meaning as a mitigating factor, there should generally be a discernable difference between sentences imposed after a contested trial and those imposed following a plea of guilt.

[39] Dambrot J.'s decision in R. v. Pearce, supra was only one of two Ontario cases presented to me, where sentencing followed a guilty plea and not a contested trial. Justice Dambrot would have imposed a sentence between 12 and 15 years, save and except for the guilty plea and some non-exceptional mitigating factors. Instead, he imposed a nine year sentence, which was between 3 and 6 years lower than the sentence he deemed otherwise appropriate. This case has assisted me in understanding the calculable difference in sentence a guilty plea may have. The difference in quantum should generally be meaningful.

30The primary purposes of sentencing Mr. Hopwood for this home invasion are denunciation and deterrence. This abuse of a vulnerable member of our society calls for no less than an expression of our abhorrence at Mr. Hopwood's actions. The sentence must be significant enough to deter him in the future as well as to serve as a public example of how perpetrators of such acts will be treated by the courts. Nevertheless, I must keep in mind that Mr. Hopwood was a young man at the time he committed these crimes and comes before the court with no criminal record.

31I sentence Mr. Hopwood to one hundred and two months for the offences related to the invasion of Mr. Huynh's home and what followed.

The Attempt to Obstruct Justice

32On July 8, 2017, two correctional officers at the Ottawa-Carleton Detention Centre intercepted Mr. Hopwood attempting to pass a note to Mr. Mattis who was being held in a unit neighbouring that housing Mr. Hopwood. Mr. Mattis was scheduled to testify in the near future against Mr. Hopwood at the trial related to the Huynh home invasion as well as another incident near Toronto (Mr. Hopwood's trial ended up not going ahead at that time). In his note, Mr. Hopwood asked Mr. Mattis to change his anticipated testimony to reflect a position more favourable to Mr. Hopwood. In effect, Mr. Hopwood asked Mr. Mattis to lie for him.

33As I have indicated earlier, the Crown is seeking a sentence of two and a half years consecutive to any other sentence for this count. Mr. Lamb, for Mr. Hopwood, submits that a consecutive sentence in the range of four to six months is appropriate.

34The Crown relies on the Ontario Court of Appeal decision in R. v. Williams, 2016 ONCA 937, in support of this position. That decision is an "Appeal Book Endorsement". It is concise and the passage dealing with the present issue reads, in its entirety, as:

12 We conclude that the sentence, while substantial was not unfit. The maximum sentence is 10 years. We see no error in principle.

13 The trial judge correctly noted that obstruction of justice goes to the very heart and foundation of our criminal justice system.

There is no further information provided in the endorsement indicating upon what factors the trial judge based his sentence. On my own, I have located the judgment in the matter (2015 ONSC 4869) but have not been able to locate the sentencing decision. Therefore, the appellate ruling in Williams is of no use to me in sentencing Mr. Hopwood on this count. I was not provided with any cases on this point by the defence.

35My review of the case law on sentencing for attempt to obstruct justice indicates that there is a fairly wide range of sentences that have been imposed. Mr. Hopwood was facing very serious charges and the attempted obstruction was in order to avoid having to take responsibility for his actions. However, there were no threats or inducements made or offered. There is no clear evidence before me that there were any other such attempts. I am of the opinion that a sentence of six months consecutive to the other sentences is appropriate here.

The Aggravated Assault

36On February 1, 2018, Mr. Hopwood and his co-accused (not Mr. Mattis) were being held at the Ottawa-Carleton Detention Centre. As part of the sentencing proceedings, I was shown a prison security video that captured the assault. Mr. Hopwood and the co-accused are observed to walk down a narrow corridor towards the victim, another prisoner. Mr. Hopwood and the victim seem to engage in a conversation. Mr. Hopwood appears to be starting to move away when it seems from the video that the victim says something. Mr. Hopwood quickly lashes out and strikes him. What then follows is Mr. Hopwood and his co-accused ganging up on the victim who tries unsuccessfully to defend himself. The two assailants punch and kick the victim multiple times and continue doing so even when he is lying on the floor. The assault stops upon the arrival on scene of a squad of correctional officers.

37I was advised that amongst his injuries, the victim suffered multiple fractures of the bones in his face. I was also advised that the victim would not cooperate with the police in their investigation of this matter.

38I was advised that in the case of the co-accused on this particular count, the Crown consented to his entering a guilty plea to the lesser and included offence of assault causing bodily harm for which he received a sentence of twelve months; that sentence was a joint recommendation to the Court. While in the present case the Crown is not consenting to a guilty plea to a lesser and included offence, Mr. Geigen-Miller has informed me that Mr. Hopwood and the co-accused pleaded guilty to exactly the same facts.

39I know virtually nothing about the co-accused. However, Mr. Hopwood was twenty-eight years old at the time of this offence. He had no criminal record. The two men have pleaded guilty to the exact same facts. I have not been advised of any significant difference between them. The Crown is asking me to sentence Mr. Hopwood to six months to a year more than his co-accused received. This is based, it would seem, on the fact that he is pleading guilty to the more serious offence of aggravated assault albeit, on the exact same facts.

40To my mind, the Crown's position flies in the face of the sentencing principle of parity. I have not been referred to any case law in support of that position. In the circumstances of Mr. Hopwood, I find that the appropriate sentence for the charge of aggravated assault is twelve months consecutive to the sentences for the other offences.

The Obstruct Peace Officer

41In regards to this charge, I learned that on July 23, 2018, correctional officers came to Mr. Hopwood's cell in order to take him to a segregation unit as a result of some prior behaviours that resulted in a misconduct being registered against him. It would seem that Mr. Hopwood refused to accompany the officers and pulled away from an officer who had grabbed his arm. He was then pepper sprayed twice.

42The joint submission on this count is for thirty days imprisonment to be served concurrent to the other sentences.

Conclusion

43Mr. Hopwood is sentenced therefore to one hundred and two months on each of the counts arising out of the home invasion: robbery, forcible confinement, kidnapping, extortion, and assault causing bodily harm. These counts are to be served concurrent to each other.

44On the related count of attempt to obstruct justice, he is sentenced to six months to be served consecutively to the other counts.

45With respect to the aggravated assault arising out of the incident at the detention centre, his sentence is twelve months to be served consecutively to the other counts.

46The sentence in regards to the count of obstruct peace officer will be one month to be served concurrently to the other counts.

47The global sentence will be one hundred and twenty months. I have considered totality in the context of this sentencing. I do not find that the impact of this global sentence "exceeds the gravity of the offences in question or the overall culpability of the offender" (see R. v. Johnson, 2012 ONCA 339 at paragraph 18).

48One hundred and twenty months is ten years. Mr. Hopwood has served the pre-sentence equivalent of seven years. Thus, there remains three years for him to serve.