Court File and Parties

Ontario Court of Justice

Date: 2018-11-07

Court File No.: Brampton 17-2979

Between:

Her Majesty the Queen

— and —

William Van-Luyk

Before: Justice Iona Jaffe

Heard on: October 18 and 31, 2018

Reasons for Judgment released on: November 7, 2018

Counsel:

• P. Quilty, counsel for the Crown
• M. Owoh, counsel for the accused William Van-Luyk

JAFFE J.:

Introduction

[1] On July 1, 2018 I found Mr. Van-Luyk guilty of three offences:

• Simple mischief;
• Mischief which endangered the life of Nicole Nugent; and
• Arson which caused damage to Ms. Nugent's vehicle.

[2] The simple mischief charge was stayed pursuant to the Kienapple principle. Mr. Van-Luyk is now to be sentenced on the two counts relating to the arson on Ms. Nugent's car, and the subsequent mischief involving her new car, which endangered her life.

Circumstances of the Offence

[3] The convictions followed a trial during which Ms. Nicole Nugent described being awoken in the middle of the night on February 7, 2017 to see her car in flames in her driveway. Ms. Nugent and her daughter Destinee, who had for a time dated Mr. Van-Luyk, lived in a townhouse and the flaming car was steps from their front door.

[4] The fire was extinguished by firefighters but not before Ms. Nugent's car was ruined. Most of the damage was to the engine compartment of the vehicle, especially around the driver's side of the motor. The fire had begun to breach the firewall which separated the engine compartment from the interior cabin. A can of lighter fluid and remnants of wooden matches still sat on top of the burned vehicle. I found that Mr. Van-Luyk deliberately set fire to Ms. Nugent's car, and based on the evidence at trial, I am satisfied that he did so by pouring lighter fluid onto the front of the car, which in turn seeped into the engine and was ignited with the use of matches.

[5] Ms. Nugent also testified that a month later, on March 7th, she exited her townhouse early in the morning, entered her new car which was parked in her driveway, and detected a strong odour of gasoline. After checking the footage of her home security camera, she realized that in the middle of the night, someone wearing a hoodie had deliberately poured liquid onto the front hood and windshield of her car from a jerry can. I found that the person caught on Ms. Nugent's security camera was Mr. Van-Luyk, who about 20 minutes earlier, had been captured on a security camera filling a jerry can with gasoline at a nearby Petro Can station.

Victim Impact Statements

[6] Nicole Nugent read into the record her own victim impact statement as well as the statement of her daughter, Nicole. The statements provide insight into the emotional and financial impact caused to both women by Mr. Van-Luyk's actions.

[7] Nicole Nugent had recently made her last payment after seven years of car payments, when her car was destroyed by fire on February 7, 2017. Nicole is now committed to another five years of car payments and higher insurance payments. With the realization that Mr. Van-Luyk attempted to do the same thing a month later to her new car, Nicole Nugent now lives in fear worried about what he might next do to her and her family.

[8] Nicole has suffered financially, not only because she has had to replace her vehicle, but she incurred car rental expenses and has had to use up sick days, personal and vacation days as a direct result of the offences and the court proceedings.

[9] Destinee Nugent was naturally impacted by the actions of Mr. Van-Luyk, her former boyfriend. Destinee feels betrayed by a man she trusted and who she introduced to her family. As her mother does, Destinee also lives in fear of Mr. Van-Luyk, and of what he might next do.

Circumstances of the Offender

[10] Mr. Van-Luyk was 24 years old at the time of the offences. In fact he turned 25 on March 7, 2017 the date on which he was seen on camera pouring gasoline onto Ms. Nugent's new car. Mr. Van-Luyk had no prior criminal record.

[11] According to the pre-sentence report Mr. Van-Luyk resides in Brampton and enjoys a good relationship with his parents and sister all of whom also live in Brampton. Mr. Van-Luyk has a young daughter with his former common law spouse with whom he is currently involved in family court proceedings, though I have heard he is an active participant in his daughter's life. He and Destinee Nugent dated for approximately 9 months though they broke up about one year prior to the offences.

[12] Mr. Van-Luyk reported to the author of the presentence report that he completed grade 12 and subsequently obtained a diploma in Heating Ventilation and Air Conditioning. Mr. Van-Luyk also reported that he was in the early stages of operating his own construction business, though his parents advised the probation officer that Mr. Van-Luyk had just started full time employment at a warehouse. Specifically, his counsel advised the Court that Mr. Van-Luyk now works at a beer Store distribution centre from 6:30 am to 2 pm.

Position of the Parties

[13] The offence of mischief causing actual danger to life is punishable by life imprisonment pursuant to s. 430(2) of the Criminal Code. The offence of arson causing damage to property is punishable by a term of imprisonment up to 14 years pursuant to s. 434.

[14] The Crown is seeking a 2 to 2½ year jail sentence and restitution in the amount of $689, together with a DNA order and weapons prohibition. On behalf of Mr. Van-Luyk, Mr. Owoh argued that a sentence of 90 days, served on an intermittent basis, would satisfy the principles and objectives of sentencing in this case.

Sentencing Principles

[15] The fundamental purpose of sentencing is to protect society and to contribute, along with crime prevention initiatives, to respect for law and the maintenance of a just, peaceful and safe society by imposing just sanctions that have one or more of the objectives set out in s. 718 (a - f) of the Criminal Code.

[16] In this case, the paramount objectives are deterrence (general and specific), and denunciation: R. v. Bevacqua, 2014 ONSC 6279, at para. 47.

[17] One of the fundamental purposes of any sentence is the protection of society: R. v. Simpson, [1981] O.J. No. 34 (Ont. C.A.). Where individuals pose a significant danger, separating them from the community takes on greater significance.

[18] Section 718.1 embodies the principle of proportionality requiring the sentence imposed "be proportionate to the gravity of the offence and the degree of responsibility of the offender." A sentencing court's adherence to this fundamental principle requires an individualized approach to sentencing, which takes into consideration all relevant mitigating and aggravating circumstances relating to both the offence and the offender: s. 718.2(a). The sentencing court's discretion is not however, unbridled. The principle of parity embodied in s. 718.2(b), requires the sentence imposed be similar to sentences imposed on similar offenders in similar situations.

[19] While the parity principle provides some limits to the sentencing court's discretion, within those limits, the process remains inherently individualized, and there is no such thing as a one-size fits all sentence: R. v. C.A.M., [1996] 1 S.C.R. 500, at para. 92; R. v. Lacasse, 2015 SCC 64, [2015] 3 S.C.R. 1089, at para. 58.

[20] Section 718.2 (e) codifies the principle of restraint and directs sentencing courts to consider all other sanctions other than imprisonment that are reasonable in the circumstances of the particular case, and also consistent with the harm done to the specific victim.

[21] The Crown and defence referred to a number of cases in support their sentencing positions. I have read all of these cases and the message conveyed from trial courts and our Court of Appeal is twofold:

i) Upon conviction of arson, the offender can expect to receive a significant sentence regardless of his or her motives or sympathetic circumstances; and

ii) Conditional sentences are generally not appropriate in arson cases.

[22] A deliberately set fire poses risks not only to the arsonist, or to the occupants of the ignited building or car, or to occupants of adjacent structures, but to anyone who responds to the fire such as emergency personnel and helpful bystanders. The offence of arson is committed for any number of reasons. Jealousy, anger, and financial interests are the common motivators however, regardless of the underlying motives, the risks are the same. The offence is also often planned and calculated. For these reasons, the sentencing objectives of denunciation and deterrence take center stage at the sentencing of an arsonists, who can expect significant sanctions if convicted.

[23] Even where the arson takes place at the express request of the homeowner, the arsonist stands to pay a hefty penal price. For instance in R. v. Popert, 2010 ONCA 89, 251 C.C.C. (3d) 30, the appellant pled guilty to arson and failing to comply with an undertaking. The appellant had burned down a house at the request of the homeowners who were experiencing financial difficulties and who sought to gain insurance money. The house did not burn completely but was severely damaged. The appellant was sentenced to 9 months jail, one year probation and was order to pay in excess of $40,000 restitution. The Court of Appeal set aside the restitution order leaving the remainder of the sentence intact.

[24] Sympathetic circumstances of an arsonist while mitigating, will not necessarily justify a non-custodial sentence. In R. v. Pidgeon, 2016 ONCJ 334, the accused had burned down her home, which at the time, was "filthy and barely fit for human habitation". The accused was 55 years old with no prior record, was a victim of domestic abuse, suffered from post-traumatic stress, anxiety and depression. The trial judge imposed a five month jail sentence and a two year period of probation. Highlighting the risks posed to first responders, three members of the volunteer fire department were treated for smoke inhalation while responding to the fire intentionally lit by Ms. Pigeon.

[25] Nor will an arsonist's intention to harm only himself justify a noncustodial sentence. In response to his fiancée calling off their wedding, the accused in R. v. Jonah, 2014 ONCJ 19 doused his bedroom floor with gasoline and lit it on fire in an attempt to harm himself. No one else was home at the time. The accused changed his mind, attempted to contain the fire and called 911. He sustained burns to his face and body, and the house, in which he lived with his fiancée and their young daughter sustained considerable damage. The accused was 35 years old at the time of the offence with no criminal record. The trial judge refused to impose a conditional sentence, and imposed a 6-month jail sentence followed by 2 years of probation.

[26] And while reformatory sentences for arsonists are not uncommon, conditional sentences are. For instance, in R. v. Wright, [2004] O.J. No. 3321, (S.C.J.), the accused was convicted after trial of burning down the empty house he and his wife were in the midst of constructing. The accused's actions were found to have been in retaliation of the wife's intention to leave the marriage. The accused was 35 years old with one previous conviction for assault. Though the conviction followed a trial, by the time of his sentencing, the accused had admitted responsibility and expressed remorse. Nevertheless, the trial judge rejected a conditional sentence and imposed a sentence of two years less a day and three years' probation.

[27] The judge's rejection of a conditional sentence in Wright, was consistent with the message conveyed by the Court of Appeal that conditional sentences are not appropriate in cases of serious arson. In R. v. Mirzakhalili, 2009 ONCA 905, 257 O.A.C. 27, at para. 3, the Court of Appeal reiterated that message. In that case, the appellants (father and son) were convicted of arson after having blown up and burned down their family business for insurance purposes. The Court of Appeal was of the view that an appropriate sentence would have been two years less a day. Though no one was hurt in the fire, the Court emphasized at para. 9 that arson always endangers the lives of the fire fighters and emergency personnel who respond to intentionally lit fires.

[28] The same appellate message regarding conditional sentences was conveyed more recently in R. v. Bos, 2016 ONCA 443, 131 O.R. (3d) 755. In Bos, the appellant was convicted after trial with setting a fire in stairway of a farmhouse owned by someone with whom she was romantically involved. The Court of Appeal agreed with the trial judge's rejection of a conditional sentence and upheld the 18 month jail sentence.

Sentencing Range

[29] A range of sentence of 3 to 5 years for arson endangering life was identified by Ricchetti J. in R. v. Bevacqua, 2014 ONSC 6279. In that case, the accused had set his house on fire by igniting a basement sofa while his wife and children were still in the home. The entire basement was damaged by the fire and a family cat was killed. The accused was 44 years of age and had a history of physically abusing his wife. Ricchetti J. emphasized the paramount sentencing objectives of denunciation and deterrence, and with the accused's history of domestic violence and the lack of success with PARS, Ricchetti J. was skeptical about the prospects of rehabilitation. Ricchetti J. imposed a 4½ year sentence on that charge, and a concurrent sentence of 2½ years on the arson which damaged property.

[30] The Crown in this case argues while Mr. Van-Luyk was not found guilty of arson endangering life, he must have known that in lighting fire to Ms. Nugent's car he was endangering the lives of the Nugents whose house was a mere steps away from the flames.

[31] On behalf of Mr. Van-Luyk, Mr. Owoh argued that no evidence was tendered regarding the risk to the Nugents or to nearby properties. Mr. Owoh argued it would inappropriate to sentence Mr. Van-Luyk on the basis of a risk for which there was no evidence.

[32] I agree there was no evidence relating specifically to the risk of endangerment to life as there was for instance in R. v. Campeau, [1999] O.J. No. 2415 (C.A.), one of the cases referred to by Mr. Owoh in his sentencing submissions. Unlike the trial judge in Campeau, I cannot conclude that the car fire in this case would have inevitably spread to the Nugent's townhouse if not extinguished by firefighters. And I cannot conclude that Mr. Van-Luyk deliberately set out to hurt anyone by his conduct on February 7 or March 7th. However, in my view Mr. Van-Luyk was at best, indifferent to the potential risk to the Nugents or to anyone rendering assistance.

[33] It is a matter of simple common sense that setting fire to car (which in all probabilities has gasoline in its tank), poses an extreme threat to anything or anyone in close proximity. And, it is also a matter of common sense, that at 2:00 a.m., the occupants of a townhouse are likely at home, and in bed. Mr. Van-Luyk was surely aware of the fact that on both occasions in February and March, the Nugents were at home, in bed.

[34] While Mr. Van-Luyk is not being sentenced for arson endangering life, he is being sentenced for mischief endangering life, which was merely a failed attempt at arson.

[35] The sentencing range identified by Richetti J.'s is instructive. However, sentencing ranges are merely guidelines, which pin point the minimum and maximum sentences imposed in the past for similar offences: Lacasse, at paras. 57 and 60. Established ranges must not hamstring the sentencing judge from imposing a sentence which falls below or above a sentencing range if justified by the particular circumstances of the offence or offender.

Aggravating Factors

[36] As previously mentioned, the best that can be said is that Mr. Van-Luyk was indifferent to the possibility that the Nugents or others could have been hurt by his conduct. Though endangerment of life is an essential element of the March 7th mischief offence, and arguably cannot serve double duty as an aggravating factor on sentencing, I find that Mr. Van-Luyk's indifference to the risk posed by the car fire on February 7th is an aggravating factor in relation to that charge.

[37] Another aggravating feature of this case is that Mr. Van-Luyk struck the Nugent's home not once but twice. He set fire to Ms. Nugent's car on February 7th and had time to let the magnitude of that offence sink in. He had time to reflect on what he had done. And instead of remorse, or regret, he set out to do the very same thing, exactly one month later. Perhaps Mr. Van-Luyk felt he had not quite succeeded in February. Perhaps he was hoping to do more damage. Perhaps he just wanted to replicate the same offence, destroying another car of Nicole Nugent and causing more fear to her and her daughter. Regardless, the fact that he committed or attempted to commit the same offence against the same victim twice is an aggravating factor.

[38] And finally, unlike in R. v. Ravindharaj, 2012 ONSC 6260, [2012] O.J. No. 5154 (S.C.J.) another case referred to by Mr. Owoh, where the accused who received a 14 month sentence apparently acted impulsively in damaging two police cars, and attempting to set fire to one of the cars, the offences in this case involved a degree of planning. As well, in the security footage which captured Mr. Van-Luyk dousing Ms. Nugent's car with gasoline on March 7th, a figure can be seen standing guard at the end of the driveway. This particular offence was not only a pre-planned offence, but one seemingly done in concert with another person.

Mitigating Factors

[39] Mr. Van-Luyk is young, has no previous record and is, according to his counsel, an active participant in the raising of his young child.

[40] Absent from the list of mitigating factors is an indication that Mr. Van-Luyk is genuinely remorseful for his actions. The closest thing to remorse that has been revealed in the sentencing proceedings comes from Mr. Van-Luyk's presentence report in which the author reported that Mr. Van-Luyk said to him "it sucks what happened". This is hardly a resounding expression of contrition.

Appropriate Sentence

[41] Having regard to all the circumstances of this case, it is my view that an appropriate sentence is one of 18 months, on each charge. The sentences, while imposed in relation to two discrete offences, will be served concurrently. I believe each offence is worthy of an 18 month sentence as each are equally serious.

[42] While the Crown's position of a low penitentiary term might be within the range, anything more than two years would preclude the imposition of a probationary term. The ability to place Mr. Van-Luyk on probation, with a counselling term, is something I have taken into consideration in determining the appropriate sentence.

[43] The Crown argued that the offences were committed in the context of a domestic dispute. However, while I know that Mr. Van-Luyk and Destinee Nugent dated, they had been broken up for some time. I do know that at the time of the offence, Mr. Van-Luyk seemed to think that Ms. Nugent owed him money. Whether Mr. Van-Luyk's conduct was motivated by termination of a romantic relationship or by financial interests, his actions are unexplained, unjustified, and suggest a need for counselling.

Conditional Sentences

[44] Though neither party suggested a conditional sentence, having determined that a sentence of 18 months would be appropriate in this case, it is incumbent upon me to consider the availability, and suitability, of a conditional sentence: R. v. Proulx, [2000] 1 S.C.R., at para. 90.

[45] A conditional sentence in this case would be not be consistent with the fundamental purpose and principles of sentencing set out in sections 718 to 718.2. The sentence imposed on Mr. Van-Luyk must unequivocally denounce his conduct and deter both himself and others from committing similar offences. In my view a conditional sentence would fail to achieve those objectives.

Sentencing Mr. Van-Luyk

[46] I am sentencing you to 18 months jail on each of the two charges, to be served concurrently. In addition, in relation to both charges, I am placing you probation for three years. Within 48 hours of being released from jail, you are to attend at a probation office and thereafter as directed by your probation officer. You shall notify the court or probation officer of any change of address or employment. For the entire period of your probation, you are to keep the peace and be of good behaviour.

[47] You are to have no contact, directly or indirectly, with Nicole Nugent and Destinee Nugent and you are not to attend anywhere you know Nicole Nugent or Destinee Nugent to be. You are not to attend within 100 meters of 32 Middleton Way in Brampton. You are not to possess any weapons as defined by the Criminal Code, and you are to attend and participate in all counselling as directed by your probation officer, including counselling for anger management.

[48] These offences are secondary designated offences. Having regard to the circumstances of the offences in this case, and the minimally invasive means by which a DNA sample can be obtained, I am of the view that it is in the best interest of the administration of justice to make an order under s. 487.051(3) of the Criminal Code. Accordingly, Mr. Van-Luyk you shall provide a sample of your DNA today for the purpose of analysis.

[49] As for a weapons prohibition, I am of the view this is a mandatory prohibition by virtue of s. 109(a.1) of the Code which provides that such an order is mandatory upon conviction of an indictable offence which involved the use of violence or threats of violence towards a person's current or former intimate partner or towards any person who resides with the current or former intimate partner.

[50] As such Mr. Van-Luyk you are prohibited from possessing any firearm other than a prohibited firearm or restricted firearm, cross bow restricted weapon ammunition and explosive substance for a period of 10 years and any prohibited firearm, restricted firearm prohibited weapon prohibited device and prohibited ammunition for life.

[51] There will be victim fine surcharges levied against you and you will have two years to pay those fines.

[52] I have considered the Crown's request for restitution and while I have no doubt the Nugents suffered some monetary loss as a result of these offences, I have no specifics regarding those losses.

[53] Mr. Van-Luyk, you have many advantages. You have the support of your family, an education, and intelligence. You have led an otherwise law abiding life. You are young and have a whole life ahead of you. I hope you will learn from these experiences, leave them in the past, and live a productive and peaceful life.

Released: November 7, 2018

Justice I. Jaffe