Her Majesty the Queen v. Wright [Indexed as: R. v. Wright]

83 O.R. (3d) 427

Court of Appeal for Ontario,

Goudge, Sharpe and Blair JJ.A.

December 8, 2006

Criminal law -- Sentencing -- Ranges of sentence -- Home invasion -- Accused arguing trial judge erring in stating range of sentence had moved from five to eight years to seven to ten or 11 years -- Recent authorities showing range of sentence evolving with some sentences as low as four years and others as high as 11 to 13 years -- Stiff penitentiary sentence usually called for given need to protect public and express denunciation and need for general deterrence -- Home invasions requiring nuanced approach to sentence as circumstances of offence can vary greatly -- Cases involving sexual assault or serious injury or death at higher end of range -- Trial judge not erring in holding that appellate courts now accepting upper range of sentence now higher than set some years ago.

Criminal law -- Sentencing -- Home invasion -- Accused and four others targeting residence of small business owner -- Men armed and making threats implying would kill father within hearing of two children -- Victims forcibly confined and suffering significant emotional distress -- Remorseful accused 27 years old with prior offences of dishonesty pleading guilty -- Trial judge sentencing accused to eight years' imprisonment stating range of sentence for home evasions had increased from five to eight years noted in earlier cases to upper range now being ten to 11 years -- Trial judge placing this offence nearer high end of range -- Trial judge did not err in imposing eight year sentence -- Upper end of range evolved higher -- Appeal from sentence dismissed. [page428]

The accused pleaded guilty to robbery with a firearm and being disguised with intent to commit an indictable offence. He and four other men, armed with handguns and wearing disguises, invaded the residence of a small business owner, F, confined F and his family, and compelled F to hand over his office keys and to write out the alarm code and safe combination for his business premises. The offenders stole cash and other items from the residence before fleeing. The accused was 27 years old at the time of sentencing. He had prior convictions for theft under $5,000, attempted theft under $5,000 and failing to attend court. He expressed remorse and a desire to make amends. The trial judge sentenced the accused to eight years' imprisonment. The accused appealed, arguing that the trial judge erred in concluding that sentencing range for home invasions had moved from five to eight years to something in the area of seven to ten or 11 years, and that had he applied the appropriate range, he would have concluded that a proper sentence for the accused was six years' imprisonment.

Held, the appeal should be dismissed.

Sentencing ranges may be altered deliberately, after careful consideration, by the courts, or they may be altered practically, as a consequence of a series of decisions made by the courts which have that effect. If a range moves by virtue of the application of individual cases over time, it is not necessary to overrule an earlier range that may once have been in vogue; it is only necessary to recognize that the courts have adapted and the guidelines have changed. In the case of home invasions, the courts have moved away from the notion of a firm range of five to eight years' imprisonment. Recent sentences have ranged from as low as four or five years to as high as 11 to 13 years. Home invasion cases call for a particularly nuanced approach to sentencing. They require a careful examination of the circumstances of the particular case in question, the nature and severity of the criminal acts perpetrated in the course of the home invasion and of the situation of the individual offender. Whether a case falls within the existing guidelines or range -- or whether it may be one of those exceptional cases that falls outside the range and results in a moving of the yardsticks -- will depend upon the results of such an examination. In cases of this nature the objectives of protection of the public, general deterrence and denunciation should be given priority. A stiff penitentiary sentence is generally called for.

In this case, the trial judge did not err in his understanding of the appropriate range. Having regard to the accused's plea, his obvious remorse, his desire to make amends and his willingness to take responsibility for his actions, but also having regard for the need for deterrence and denunciation, the trial judge decided that he would sentence the accused to a period that was well below the upper end of the range, but still significant enough to reflect the fact that lengthy penitentiary terms are fully warranted in these types of cases. He was not in error in doing so. Although perhaps not in the upper echelons of home invasions, this was a very serious crime. The victims were forcibly confined and terrorized at gunpoint and subjected to significant emotional and psychological distress. F was threatened with harm if he did not co-operate, and this intimidation took place within full earshot of the rest of his family, including an 11-year- old boy. The fact that two of the other offenders (whose criminal records were significantly more elaborate than the accused's) received sentences of 11 and 12 years was also a factor for consideration. The eight year sentence was wholly appropriate.

APPEAL from a sentence imposed by Howden J. of the Superior Court of Justice on September 9, 2005 for robbery with a firearm and disguise with intent.

Cases referred to R. v. C. (A.J.), [2004] B.C.J. No. 964, 2004 BCCA 268, 196 B.C.A.C. 257, 62 W.C.B. (2d) 135, 186 C.C.C. (3d) 227; R. v. D.W., [2004] O.J. No. 5825 (S.C.J.); [page429] R. v. Ferreira, [1997] O.J. No. 799 (C.A.); R. v. Harriott, [2003] 1 S.C.R. 39, [2003] S.C.J. No. 4, 301 N.R. 1, 171 C.C.C. (3d) 351, 2003 SCC 5, affg (2002), 2002 23588 (ON CA), 58 O.R. (3d) 1, [2002] O.J. No. 387, 161 C.C.C. (3d) 481 (C.A.); R. v. Nelson, 2001 5235 (ON CA), [2001] O.J. No. 2585, 147 O.A.C. 358, 50 W.C.B. (2d) 303 (C.A.); R. v. Soares, [1998] O.J. No. 3275 (C.A.), affg [1996] O.J. No. 5488 (S.C.J.); R. v. Wang, 2001 20933 (ON CA), [2001] O.J. No. 1491, 153 C.C.C. (3d) 321, 144 O.A.C. 115, 49 W.C.B. (2d) 501 (C.A.) consd Other cases referred to R. v. Barnes, [2006] O.J. No. 5163, 2006 CarswellOnt 4043 (S.C.J.); R. v. Bernier, [2003] B.C.J. No. 466, 177 C.C.C. (3d) 137, 2003 BCCA 134; R. v. D. (D.) (2002), 2002 44915 (ON CA), 58 O.R. (3d) 788, [2002] O.J. No. 1061, 163 C.C.C. (3d) 471 (C.A.); R. v. McDonnell, 1997 389 (SCC), [1997] 1 S.C.R. 948, [1997] S.C.J. No. 42, 49 Alta. L.R. (3d) 111, 145 D.L.R. (4th) 577, 210 N.R. 241, 43 C.R.R. (2d) 189, 114 C.C.C. (3d) 436, 6 C.R. (5th) 231; R. v. Pakoo, [2004] M.J. No. 409, 198 C.C.C. (3d) 122, [2005] 9 W.W.R. 414, 190 Man. R. (2d) 133, 25 C.R. (6th) 277, 2004 MBCA 157; R. v. S. (J.) (2006), 2006 22101 (ON CA), 81 O.R. (3d) 511, [2006] O.J. No. 2654, 213 O.A.C. 274, 210 C.C.C. (3d) 296 (C.A.); R. v. Stone, 1999 688 (SCC), [1999] 2 S.C.R. 290, [1999] S.C.J. No. 27, 173 D.L.R. (4th) 66, 239 N.R. 201, 63 C.R.R. (2d) 43, 134 C.C.C. (3d) 353, 24 C.R. (5th) 1

Wade Wright, in person, with Robert Goddard, Correctional Law Project, Faculty of Law, Queen's University, assisting. Charmaine Wong, for respondent.

The judgment of the court was delivered by

BLAIR J.A.: --

Overview

[1] Mr. Wright appeals from the sentence of eight years' imprisonment imposed by Justice Peter Howden following his guilty plea to charges of robbery with a firearm and being disguised with intent to commit an indictable offence. The offences took place in the context of a home invasion.

[2] In imposing his sentence of eight years' imprisonment the trial judge concluded that the five-to-eight-year range for home invasions referred to by this court in R. v. Wang [^1] and R. v. Ferreira [^2] had subsequently moved up to something in the area of seven to ten or 11 years on the basis that "the Court is having to recognize that this kind of offence merits greater punishment". Mr. Goddard -- who was of great assistance to us in this case -- [page430] submits on behalf of the appellant that the trial judge erred in this conclusion and that this error influenced his decision to impose an eight-year term rather than a lesser period of imprisonment.

[3] In this respect, Mr. Goddard argues that a review of the trial judge's reasons indicates he wished to place the appellant's sentence at the lower end of the appropriate range, whatever that range was. By extension he argues that had the trial judge applied the appropriate range of five to eight years, he would have concluded that a proper sentence for Mr. Wright was six years' imprisonment instead of eight.

[4] For the reasons that follow, however, I would not interfere with the sentence imposed by the trial judge.

Facts

[5] On January 26, 2004, five men, armed with handguns and wearing gloves and disguises, committed a home invasion at the residence of the owner of a small business, Mr. Fuda. They surrounded Mr. Fuda in his driveway when he returned from work. The ultimate objective of the attack was to rob his business premises, which were located elsewhere.

[6] With that objective in mind, the intruders forced Mr. Fuda to take them into the family home. When inside, they gathered his family in the living room, and confined them there -- Mrs. Fuda, the couple's 20 and 23-year-old daughters, their 11-year-old son, and a nanny -- while they carried out their plan of extracting the information necessary to facilitate access to the safe at his store. Mr. Fuda was compelled to hand over the keys to the office premises, and to write out the alarm code and the combination for the safe on a piece of paper.

[7] The confinement continued for approximately 45 minutes while one of the men went to the business premises to open the safe. When he was unsuccessful in doing so, he called back to the home and demanded the correct information from Mr. Fuda, threatening to hurt him and his family if the correct information was not provided. The appellant and one of the other intruders held their guns to Mr. Fuda while he was on the phone with the robber at the store, and one of them told him: "Make sure you tell him the right combination or else you're gonna get hurt." This intimidation took place within earshot of the family huddled in the living room. The daughter, Sarah, could hear her father crying in the hallway. In these circumstances, the threat to hurt Mr. Fuda and his family could only have been interpreted to mean that he, or they, were going to be shot and killed or, at least, seriously injured. [page431]

[8] Although the intruders targeted Mr. Fuda and his family with the objective of robbing Mr. Fuda's business premises, they also took approximately $950 in cash and some other items were also taken from the home.

[9] The ordeal ended when the police arrived at the home and the invaders fled. [^3]

Analysis

The trial judge's disposition

[10] Mr. Wright pleaded guilty to the charges he faced, and the trial judge sentenced him to a total of eight years imprisonment. [^4]

[11] At the time of his sentencing, the appellant was 27 years of age. He has a prior criminal record involving three convictions for theft under $5,000 (one as a youth), one conviction for attempted theft under $5,000 and one conviction for failure to attend court. His last convictions prior to the events giving rise to this appeal were in relation to acts that occurred in 1998. He is strongly supported by the mother of his two-year-old child and by his own mother, as well as by many friends and acquaintances, all of whom view the home invasion conduct as "out of character".

[12] The trial judge quite correctly observed that home invasion offences of this kind "must be recognized by the courts as serious and denounced as totally unacceptable in a civilized society". As a corollary, he rightly noted that he must give priority to the sentencing objectives of deterrence and denunciation. He also recognized, however, that Mr. Wright was entitled to be judged on his own merits and that his prospects for rehabilitation must be taken into account. He was impressed with the remorse the appellant had demonstrated in his statement to the court prior to sentencing, as well as the appellant's empathy for his victims, his understanding of the seriousness of what he had done, his desire to make amends and his willingness to face his sentence responsibly. The trial judge commented that he had "seldom heard from the dock a more insightful statement of what an accused has caused by his conduct". [page432]

Home invasion

[13] Home invasion is a serious, and increasingly prevalent, crime in our society. For a discussion of its essential nature and the variety of circumstances "home invasion" can embrace, see R. v. S. (J.) (2006), 2006 22101 (ON CA), 81 O.R. (3d) 511, [2006] O.J. No. 2654, 210 C.C.C. (3d) 296 (C.A.). The crime committed by Mr. Wright constitutes a home invasion because it was characterized by the invaders' forced entry into the victims' home for purposes of committing a theft or robbery, knowing that (or being reckless as to whether) the home was being occupied, and by the accompanying use or threatened use of violence with guns, together with the confinement of the occupants of the home.

[14] As this court also noted in S. (J.), supra, at para. 34, home invasion offences are particularly troubling "because they represent a violation of the sanctity of the home and of the sense of security people feel when in their homes -- highly cherished values in our society -- and because they are frequently perpetrated against vulnerable individuals". They must therefore be dealt with sternly by the courts. This concern was eloquently captured by Trafford J. in R. v. Soares, [1996] O.J. No. 5488 (S.C.J.), [^5] at para. 286:

The sanctity of one's home is of fundamental importance in a free and democratic society. It is constitutionally recognized in our country. Everyone must not only be, but feel, secure in their residence. A society that tolerates significant criminal intrusions into the privacy of one's home is a society that forces it citizens to resort to self- help to protect themselves against such wrongs. Absent effective responses from the judiciary, the alternative is for citizens to arm themselves in anticipation of a need to defend themselves against such criminal enterprises. A society like that is not ours today, has not been ours in the past, and will not be ours in the future. The obligation of the Court is to give proper recognition to the sanctity of the home, to protect all citizens against such intrusions, and to thereby preserve the public's confidence in the administration of justice.

[15] For these reasons, a lengthy penitentiary term is fully warranted upon conviction for a home invasion offence: R. v. Nelson, 2001 5235 (ON CA), [2001] O.J. No. 2585, 147 O.A.C. 358 (C.A.), at para. 15. This appeal raises the issue of the appropriate "range" of that penitentiary term, in the context of the fitness of the sentence imposed by the trial judge.

The "range" of sentence

[16] Sentencing "ranges" are useful in promoting the "parity" principle because they provide guidelines to trial judges for the [page433] imposition of similar penalties for similar offences of a similar nature involving similar offenders: see R. v. McDonnell, 1997 389 (SCC), [1997] 1 S.C.R. 948, [1997] S.C.J. No. 42; and R. v. Stone, 1999 688 (SCC), [1999] 2 S.C.R. 290, [1999] S.C.J. No. 27. As Finch C.J.B.C. pointed out in R. v. C. (A.J.), 2004 BCCA 268, [2004] B.C.J. No. 964, 186 C.C.C. (3d) 227 (C.A.), at para. 36, relying on R. v. Bernier, 2003 BCCA 134, [2003] B.C.J. No. 466, 177 C.C.C. (3d) 137 (C.A.), they are nothing more than guidelines and are certainly not conclusive of the appropriate sentence in any given case. Each sentencing must be conducted as an individualized exercise. This point was underscored by Moldaver J.A. in R. v. D. (D.) (2002), 2002 44915 (ON CA), 58 O.R. (3d) 788, [2002] O.J. No. 1061, 163 C.C.C. (3d) 471 (C.A.), at para. 33:

Before going further, I wish to emphasize that the ranges which I have identified are not meant to be fixed and inflexible. On the contrary, sentencing is not an exact science and trial judges must retain the flexibility needed to do justice in individual cases. The suggested ranges are merely guidelines designed to assist trial judges in their difficult task of fashioning fit and just sentences in similar cases.

[17] In addition, as Finch C.J.B.C. also noted"the task of arriving at appropriate 'ranges' of sentence for 'home invasion' type crimes is particularly difficult, given the different combinations of offences that may actually be committed" (C. (A.J.), at para. 36): see also, R. v. Bernier, supra; R. v. S.(J.), supra, at para. 36; R. v. Pakoo, 2004 MBCA 157, [2004] M.J. No. 409, 198 C.C.C. (3d) 122 (C.A.).

[18] Indeed, it is the elastic nature of the home invasion offence, and the myriad of circumstances to which the label may apply, that make it difficult to define a range of sentence for such a crime. In my view, however, the trial judge was correct to observe that this court, and other appellate courts, have imposed sentences that exceed the five-to-eight-year range the appellant contends governs such cases, and that they have done so since the decisions in Wang (2001) and Ferreira (1997), upon which that range is said to rest.

[19] In R. v. Nelson, supra (2001 -- post Wang), this court (Doherty, Rosenberg and Moldaver JJ.A.) imposed a sentence of approximately nine years' imprisonment in circumstances involving a pepper spray assault of the home invasion victim but which were otherwise not dissimilar to the present circumstances and which featured a young man with a minor criminal record as the offender. [^6] In R. v. Soares, supra (1998), this court [page434] upheld a sentence of nine years' imprisonment imposed by the trial judge in circumstances somewhat more serious than those in the present case. In R. v. Harriott (2002), 2002 23588 (ON CA), 58 O.R. (3d) 1, [2002] O.J. No. 387 161 C.C.C. (3d) 481 (C.A.), affd 2003 SCC 5, [2003] 1 S.C.R. 39, [2003] S.C.J. No. 4, MacPherson J.A. (Charron J.A., concurring) sustained a penalty of the equivalent of 11 years' imprisonment (taking into account pre-trial custody) for an offence similar to that committed in Soares. Justice Nordheimer imposed a sentence of ten years' imprisonment for a home invasion involving robbery with a firearm, in R. v. D.W., [2004] O.J. No. 5825 (S.C.J.).

[20] In C. (A.J.), supra -- a home invasion case in which the perpetrators entered the home armed with (unloaded) shotguns, pepper-spray and a knife, bound the inhabitants (and gagged one of them) and threatened them in an attempt to extort $50,000 -- the British Columbia Court of Appeal reduced sentences of 14 and 16 years imprisonment to 11 and 13 years. Finch C.J.B.C. concluded that the 11- and 13-year sentences were appropriate and noted that longer sentences of 14 or 15 years were more appropriate "in the most aggravated circumstances where a 'home invasion' involves not only a break and enter to commit robbery, the terrorizing and confinement of victims, and the use of weapons to achieve these objectives, but also the infliction of serious injuries, sexual assault or death" (para. 41).

[21] Thus, I think it can be said that the courts -- including this one -- have moved away from the notion of a firm "range" of five to eight years' imprisonment for crimes involving home invasions. The trial judge did not err in so concluding.

[22] "Ranges" are not embedded in stone. Given their nature as guidelines only, I do not view them as being fixed in law, as is the case with binding legal principles. They may be altered deliberately, after careful consideration, by the courts. Or, they may be altered practically, as a consequence of a series of decisions made by the courts which have that effect. If a range moves by virtue of the application of individual cases over time, it is not necessary to overrule an earlier range that may once have been in vogue; it is only necessary to recognize that the courts have adapted and the guidelines have changed.

[23] The cases to which we have been referred, and which my own research has uncovered, reflect a gamut of sentencing dispositions in "home invasion" cases from as low as four or five years, [^7] to [page435] as high as 11 to 13 years [^8] -- with the suggestion that even higher sentences may be reserved for situations involving kidnapping, the infliction of serious injuries, sexual assault or death. [^9] Whether a "range" of that elasticity is of much assistance to trial judges in their efforts to preserve sentencing parity for similar offences involving similar offenders -- apart from signalling that a significant penitentiary jail term is generally called for -- is not clear to me. The downside of attempting to articulate a range for a type of crime that can manifest itself in such a wide variety of ways, and be committed by such a wide variety of individuals, is that the "range" becomes so broad, it is virtually meaningless. Nonetheless, to the extent there can be said to be a range in home invasion cases, it would appear that the one that currently exists is the expansive one outlined above.

[24] In my view, however"home invasion" cases call for a particularly nuanced approach to sentencing. They require a careful examination of the circumstances of the particular case in question, of the nature and severity of the criminal acts perpetrated in the course 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 -- will depend upon the results of such an examination. I agree with the British Columbia Court of Appeal in C. (A.J.) (at para. 29), however, that in cases of this nature the objectives of protection of the public, general deterrence and denunciation should be given priority, although of course the prospects of the offender's rehabilitation and the other factors pertaining to sentencing must also be considered. Certainly, a stiff penitentiary sentence is generally called for.

The sentence imposed was fit in the circumstances

[25] Here, the complaint is not that the trial judge imposed a sentence that was unfit because it was outside the accepted range for similar crimes committed by similar offenders. Rather, the complaint is that the trial judge misconstrued what the accepted range was. For the reasons outlined above, I am not persuaded that he erred in concluding that the range has moved in recent years. Nor am I persuaded -- for the reasons that follow -- that the sentence was unfit in the circumstances or that the [page436] trial judge would have imposed a lesser sentence if he had found the lower end of the range remained in the five-year zone.

[26] Mr. Goddard submits that, in sentencing the appellant to eight years' imprisonment, the trial judge was attempting to fit the sentence into the low end of a range he erroneously placed at between seven and ten or 11 years. Had he appreciated that the range remained between five and eight years, the argument goes, the trial judge would accordingly have sentenced the appellant to something in the neighbourhood of six years in order to position the sentence near the low end of the range.

[27] However, the trial judge does not say that he was attempting to place the appellant's sentence at the low end of the range, and after reviewing the transcript of the sentencing proceedings and argument, and the trial judge's reasons, I am not convinced that his decision was made with that intention. Rather, I read the trial judge's decision as focusing on the high end of the range, which he took -- correctly, in my view -- to have moved away from the eight years referred to by this court in cases like Wang and Ferreira. Having earlier noted in his reasons that "Nelson appears to open that range at the higher end and on a case by case basis", [^10] he said at the end of his reasons:

After Regina v. Nelson I do not see the eight years in Wang as the high end of the range which more realistically now, I think, is in the area of seven to ten or 11 years after cases like Regina v. ACJ (2004) 2004 BCCA 268, BCJ No. 964 [sic] (BCCA) which I recognize was from British Columbia but, given the statement in Nelson [^11] I think the Court is having to recognize that this kind of offence merits greater punishment. As well, however, we are dealing with this particular accused and not all five and certainly not most of the others who seem to be career criminals.

[28] It is not apparent where the trial judge's reference to seven years in the foregoing passage came from, [^12] but I am not persuaded from his reasons and the transcript, read as a whole, that he intended to sentence Mr. Wright in relation to the low end of the range. Having regard to Mr. Wright's plea, his obvious remorse, his desire to make amends and his willingness to take responsibility for his actions -- but also having regard for the need for deterrence and denunciation -- the trial judge decided [page437] that he would sentence the appellant to a period that was below the upper end of penalties approved by this court since those in Wang and Ferreira, but still significant enough to signal the court's recognition "that this kind of offence merits greater punishment" and to reflect this court's observation in R. v. Nelson that lengthy penitentiary terms are fully warranted in these types of cases. I do not think he was in error in doing so.

[29] In any event, even if we were to give effect to Mr. Goddard's argument, the sentence imposed was not demonstrably unfit in the circumstances in my view, and I would not interfere with it.

[30] Although not, perhaps, in the upper echelons of home invasions in terms of the gravity of the acts committed during the crime, this was nonetheless a very serious crime. It was planned and the Fudas were targeted. The victims were forcibly confined and terrorized at gunpoint, and subjected to significant emotional and psychological distress. The father was told by people accompanying him and carrying guns that he would be "hurt" (which could only mean "shot") if he did not co-operate and if he did not give the invaders the correct information to enable them to access the safe. This form of intimidation took place within full earshot of the rest of the family -- including an 11-year old boy and an older daughter who could hear her father crying.

[31] The victims endured this ordeal for approximately 45 minutes and there is no indication that it would have ended -- or ended before even more harm was done -- had the police not arrived on the scene when they did. The appellant was a full participant in these criminal activities and may well have been the perpetrator who directly threatened the father.

[32] The fact that two of the appellant's fellow assailants received sentences of 11 and 12 years (albeit their criminal records were significantly more elaborate than that of Mr. Wright) is also a factor for consideration.

[33] At trial, the appellant's counsel sought a sentence of six to seven years. In my view, the eight-year sentence imposed by the trial judge was wholly appropriate, having regard to all the circumstances.

Disposition

[34] Accordingly, I would dismiss the appeal.

Appeal dismissed. [page438]

[^1]: R. v. Wang, 2001 20933 (ON CA), [2001] O.J. No. 1491, 153 C.C.C. (3d) 321 (C.A.).

[^2]: [1997] O.J. No. 799 (C.A.).

[^3]: One of the daughters had called 911 as the invaders entered the home and before she was taken to the living room. She told the attacker who saw her on the phone that she was speaking to her boyfriend, not the police.

[^4]: As the appellant had spent 19 and one-half months in pre-trial custody, this meant that he would spend and additional four years and nine months in jail (crediting the pre-trial custody on a two-for-one basis).

[^5]: Affirmed [1998] O.J. No. 3275 (C.A.).

[^6]: It is noteworthy that this sentence was "imposed afresh" by the Court of Appeal after the court found that the trial judge had erred in principle in failing to take into account pre-trial custody. The members of the court did not find serious fault with the sentence imposed by the trial judge, however, which was the equivalent of nine years and eight months' imprisonment (taking into account pre-trial custody).

[^7]: See R. v. Wang, supra; R. v. Ferreira, supra; R. v. Barnes, [2006] O.J. No. 5163, 2006 Carswell Ont 4043 (S.C.J.).

[^8]: See R. v. Nelson, supra; R. v. Harriott, supra; R. v. C. (A.J.), supra; R. v. D.W., supra.

[^9]: R. v. C. (A.J.), supra, at paras. 42 and 46.

[^10]: The emphasis is mine.

[^11]: Here, the trial judge was referring to a statement by the court in R. v. Nelson that a lengthy penitentiary term was warranted.

[^12]: In the 2004 decision of D.W., supra, Nordheimer J. [at para. 11] that "counsel [had] agreed that the range of sentence, based on earlier authorities, is between seven and 13 years".