Court of Appeal for Ontario

CITATION: R. v. Hill, 2013 ONCA 572

DATE: 20130924

DOCKET: C56846

BEFORE: Hoy A.C.J.O., Rosenberg and Sharpe JJ.A.

BETWEEN

Her Majesty the Queen

Respondent

and

John James Rodney Hill

Appellant

COUNSEL:

Russell Silverstein, for the appellant

Michael Bernstein, for the respondent

HEARD: September 11, 2013

On appeal from the sentence imposed by Justice Lesley M. Baldwin of the Ontario Court of Justice, dated March 26, 2013.

ENDORSEMENT

[1] The appellant argues that the sentence of eight years, in addition to the nine months he had spent in custody prior to trial, imposed for offences (break and enter and commit robbery, forcible confinement and assault resist arrest) he committed in the context of a home invasion is unfit. He points to the fact that the sentence imposed exceeded the Crown’s request for a sentence in the eight-year range.

[2] At the time of the offences, the appellant was 28 years of age and of no fixed address. He broke into the home of an 86 year old, legally blind woman, to, among other things, steal alcohol. He confined the victim for a period of 4 to 5 hours. He kicked her dog, waved a knife at her and threatened her with bodily harm. The victim was finally able to access a telephone, and called 911. As the police arrived, the appellant put the victim in a choke-hold, kicked her, and pushed her down some stairs and to the ground. He straddled her and held a large kitchen knife to her throat. The victim cut her hand as she struggled to free herself and sustained bruising. She continues to suffer trauma as a result of this incident and has moved to live with her son in Toronto.

[3] We first note that the Crown acknowledged in the course of its sentencing submissions that it had formulated its 8-year position before it had reviewed a copy of the mental health and risk assessment ordered by the trial judge. That report found that there was no evidence that the appellant’s criminal behaviour was linked to an overtly psychotic process and that the appellant is at high risk to re-offend, both generally and violently. “High risk” means a 76 percent chance of the appellant re-offending within one year of release. The trial judge put counsel on notice that she was considering whether, in light of that report, a sentence of eight years was sufficient, and reserved her reasons for sentence. It was open to counsel to have made further submissions. And it is clear from the trial judge’s reasons for sentence that it is because of this report that she exceeded the sentence proposed by the Crown.

[4] The sentencing objectives of protection of the public, general deterrence and denunciation are given priority in home invasion cases. Sentences in such cases have fallen within a range of as low as four or five years, to as high as 11 to 13 years: R. v. Wright(2006), 2006 CanLII 40975 (ON CA), 83 O.R. (3d) 427 (C.A.), at paras. 23 and 24. This broad and loose range reflects the fact that a “home invasion” can be committed in a myriad of ways, by a wide range of offenders. As Blair J.A. wrote, at para. 24 of Wright, sentencing in a home invasion case “require[s] 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.”

[5] In this case, the trial judge carefully examined both the circumstances of the crime and the situation of the appellant, including his risk of re-offending. In doing so, she also considered the relevant mitigating factors: the inculpatory statement that the appellant provided to the police and his guilty plea. We are not persuaded that the sentence imposed was unfit.

[6] We, accordingly, grant leave to appeal sentence, but dismiss the appeal.

“Alexandra Hoy A.C.J.O.”

“Marc Rosenberg J.A.”

“Robert J. Sharpe J.A.”