Court of Appeal for Ontario

Date: 2017-05-19 Docket: C58383

Judges: MacPherson, Blair and Epstein JJ.A.

Between

Her Majesty the Queen Respondent

and

Horatio Burke Appellant

Counsel

Mark Halfyard and Colleen McKeown, for the appellant

Holly Loubert, for the respondent

Heard

May 16, 2017

On Appeal

On appeal from the sentence imposed on May 28, 2013 by Justice Michael Block of the Ontario Court of Justice.

Reasons for Decision

[1] The appellant appeals against the ten-year sentence imposed following his conviction on his plea of guilty to robbery, wearing a disguise and aggravated assault (times two). The charges arose out of the robbery of a jewellery store.

[2] On September 18, 2012, at about 1:30 pm, the appellant and Kuwayne Feron, disguised with masks, entered the small convenience jewellery store. The appellant and Mr. Feron jumped over the counter and tried to gain control of the proprietors, Mr. and Mrs. Mouradian.

[3] The assailants encountered resistance from the Mouradians. The appellant pushed Mr. Mouradian down. Mr. Feron handed the appellant a hammer. The appellant struck Mr. Mouradian on the head with the hammer and continued to strike him until Mr. Mouradian gave up. The appellant then turned his attention to Mrs. Mouradian, who was engaged in a struggle with Mr. Feron. The appellant used the hammer to strike Mrs. Mouradian on her head, arms and legs. He continued to hit Mrs. Mouradian even after she stopped moving. In total, the two victims sustained 32 hammer strikes.

[4] The Mouradians were both injured in the attack. Mrs. Mouradian suffered fractures in her head and was left with headaches and vision problems. Mr. Mouradian sustained wounds that left his face permanently scarred. Both victims have been impacted psychologically.

[5] The appellant and Mr. Feron left the store with about $30,000 worth of jewellery.

[6] The appellant fled to another province. Discovering that the robbery had been caught on video and that the police had identified him as one of the perpetrators, the appellant surrendered and accepted responsibility for his criminal conduct. A year later Mr. Feron was located. He pleaded guilty and was sentenced to three years in prison.

[7] The appellant was 23 years old at the time of the robbery. As a youth and an adult, the appellant has been found guilty of 44 offences – many for violence and weapons offences. At the time of his arrest, the appellant was bound by two active probation orders – a three-year order for assault with a weapon on his ex-girlfriend and an 18-month order for possession of a scheduled substance for the purpose of trafficking.

[8] After addressing the specific harm suffered by the victims, the sentencing judge noted that the "residue of this protracted attack impacts [the victims] on their ability to earn a living and conduct their work in a way that does not continually put them in a state of fear".

[9] The pre-sentence report contains an extensive description of the appellant's unfortunate childhood. It describes how his father was never around, how he lived with his mother only briefly given the fact she was incarcerated for a good part of the time while the appellant was growing up and how his paternal grandparents, in whose custody he remained for a period of time, would beat him with belts and shovels.

[10] The defence argued in favour of a sentence of six to eight years. The Crown's position was that, in the circumstances of this case, a sentence of 13 to 15 years was called for.

[11] The sentencing judge concluded that "a figure of 10 years seems to be the one that addressed the gravity of the crime and the very troubling record that follows [that appellant] to the courtroom on this date".

[12] The appellant argues that the sentencing judge failed to consider his surrender and guilty plea, imposed a sentence disproportionate to the sentence imposed on Mr. Feron and that the sentence is otherwise unfit. He urges this court to set aside the sentence and substitute one of six to eight years.

[13] We do not accept these arguments.

[14] First, the sentencing judge was well-aware of the surrender and guilty plea and that they should be taken into account as mitigating circumstances. He made this clear to counsel in the course of submissions as to sentence. Furthermore, in his reasons for sentence, the sentencing judge referred to these mitigating circumstances in the context of the credit to be given for pre-sentence custody.

[15] As to the argument concerning the disparity between the sentence the appellant received and that imposed on Mr. Feron, we see two important differences in the circumstances of the two offenders and their participation in the offence. First, as previously noted, the appellant had a lengthy criminal record and was bound by two separate probation orders at the time of the robbery. In stark comparison, Mr. Feron's criminal record consisted of one assault conviction in the U.S. Second, it was the appellant, not Mr. Feron, who wielded the hammer and inflicted grievous and gratuitous violence on the victims.

[16] The parity principle does not require that co-accused be subject to the same sentence or even that they be treated similarly. Rather, disparate sentences for disparate offenders do not violate the parity principle as long as they are warranted. Here, the difference between the two sentences was warranted. R. v. Courtney, 2012 ONCA 478, 294 O.A.C. 346, at paras. 4-7.

[17] We now turn to the fitness of the overall sentence.

[18] This was a cowardly, vicious attack on two defenceless victims, an attack that resulted in serious and permanent injuries. Taking all of the relevant factors into account, including the mitigating circumstances, and considering the range of sentences imposed by this court in cases such as this where the offender has a lengthy, serious and uninterrupted criminal record with minimal rehabilitative potential and where the crime has had a lasting impact on the lives of particularly vulnerable people, we are of the view that this sentence was justified.

[19] Leave to appeal sentence is granted. The appeal is dismissed.

J.C. MacPherson J.A.

R.A. Blair J.A.

Gloria Epstein J.A.