Court of Appeal for Ontario

Date: 2017-11-22 Docket: C62216 & C63838

Judges: Rouleau, Pepall and Miller JJ.A.

Between

Her Majesty the Queen Respondent

and

Jory Fourtounes and Clifford Lewis Appellants

Counsel

James Carlisle, for the appellant Jory Fourtounes Harry J. Doan, for the appellant Clifford Lewis David Finley, for the respondent

Heard and released orally: November 16, 2017

On appeal from: the sentence imposed on November 10, 2015 by Justice James W. Sloan of the Superior Court of Justice, sitting with a jury.

Reasons for Decision

[1] This is a sentence appeal by two co-accused. The appellants were charged with various offences including breaking and entering into a dwelling house, using a firearm in the commission of that offence, breaches of weapons prohibitions and drug offences. Before trial commenced, they pled guilty to the break and enter charge. Following a jury trial, they were convicted of the firearm charges and the drug offences. After the conviction, the appellants accepted the jury verdict and invited the trial judge to find them guilty of the numerous breaches of court orders.

[2] In his reasons for sentence, the sentencing judge characterized the appellant's actions as a home invasion, which he found to be an aggravating factor. Mr. Fourtounes received a global sentence of nine years minus credit for pre-sentence custody. Mr. Lewis received a global sentence of seven years minus credit for pre-sentence custody.

[3] The appellants' principal submission on appeal is that the sentencing judge erred in characterizing the offence as a home invasion. They argue that this led the sentencing judge to impose a sentence that was too high and did not respect the totality principle. In the appellants' submission, the sentencing judge ought to have found that the appellants were careful to ensure that no one would be home at the time the offence was committed.

[4] In our view, the sentencing judge was entitled to find that the appellants were reckless as to whether anyone was home at the time of the break-in. The sentencing judge found that the appellants came to the home with a gun and zip-tie handcuffs. These findings are consistent with the evidence and are entitled to significant deference. Having found that the appellants brought the gun and handcuffs to the house, the sentencing judge reasonably inferred that they were prepared to use them, if given the opportunity.

[5] In our view, whether or not this case constitutes a home invasion, the appellants' sentences should not be disturbed. This was, at a minimum, an aggravated case of residential break-in. The sentencing judge reasonably found that the appellants created a risk of harm to the occupants of the house and other residents of the neighbourhood. The appellants knew that Mr. Santizo's house was not abandoned. They carried out the robbery while conscious of the risk that the residents may be present or might return while they were in the home. That risk in fact materialized. Mr. Santizo returned home while the appellants were still present. Mr. Santizo was confronted by one of the appellants. Although it is unclear whether either of the accused pointed the gun directly at Mr. Santizo, the jury's finding of guilt on the charge of using a firearm in the commission of an indictable offence makes it clear that the gun was used to intimidate Mr. Santizo.

[6] Additional aggravating factors were present. Those include the fact that the co-accused had significant criminal records and had breached court orders in committing the offence. The offences had been premeditated, took place in broad daylight and were committed in a residential area within a four kilometre radius of four schools. Stiff penitentiary sentences were appropriate. They were fit and did not offend the totality principle.

[7] With one exception, we also see no merit in the other grounds listed in the appellants' facta. These were not pressed in oral submissions. The one exception is the credit to be given to Mr. Fourtounes for pre-trial custody. The Crown concedes that additional credit for pre-trial custody of 227 days should be awarded. We agree.

[8] In summary, leave to appeal is granted, Mr. Lewis' appeal is dismissed and the appeal of Mr. Fourtounes is allowed but only to vary the sentence, reducing it by 227 days.

Paul Rouleau J.A. S.E. Pepall J.A. B.W. Miller J.A.