Court File and Parties

Court File No.: Newmarket Courthouse 10-01446

Date: 2012-05-02

Ontario Court of Justice

Between:

Her Majesty the Queen

— and —

Kyle Alexander Chung

Before: Justice Peter J. Wright

Heard on: March 7, 2012

Reasons for Judgment released on: May 2, 2012

Counsel:

• A. Ghosh, for the Crown
• B. Petrouchinova, for the accused Kyle Alexander Chung

Reasons for Judgment

Wright J.:

[1] Guilty Plea

[1] Kyle Alexander Chung pleaded guilty to the offence of Robbery while armed with an offensive weapon, namely, a crowbar, contrary to s. 343(d) of the Criminal Code.

[2] This court is required to consider a fit and appropriate sentence for this youthful offender who committed this offence, together with others, during a home invasion in the Town of Markham, in the Regional Municipality of York.

[3] The Crown submits the defendant receive a sentence of 4 years to be served in a penitentiary.

[4] The Defence submits the defendant receive a sentence of 2 years less 1 day to be served in a reformatory plus probation.

The Facts

The Circumstances of the Offence

[5] William Ng and Xiao Yu lived in their home at […] Crescent in Markham. In the early morning hours of January 21, 2010 four (4) intruders, including Kyle Alexander Chung, broke into the home of William Ng and Xiao Yu while the latter two (2) were in their bedroom.

[6] The facts admitted by Kyle Chung and accepted by the Crown, were presented to the court in the form of a first person narrative report of Kyle Chung as set out below and filed as Exhibit #2:

1. On January 21, 2010, I was a party to a "home invasion" robbery at the residence located at […] Crescent in Markham. Earlier that night I was with friends when I received a phone call from a black male I had met on a few prior occasions. I only knew him as Leegal and I did not know him very well. He asked me to drive a car. I would be given some money for it. No other details were provided.

2. I was picked up and then given the keys to a Honda and told to follow another car. I was alone in this Honda. I did not know where I was going, but I was following the other car. In the other car were two Asian males and a black male. I was not privy to any discussions about what was going to happen. I interacted with Leegal at this time using my regular cell phone, registered to my aunt, Anita Chong: (416) 450-7820. I accept that the cell phone directory of this phone listed a contact "Leegal" with the number (416) 837-7781.

3. Both cars ended up […] Crescent in Markham in the early morning hours of January 21, 2010. We got out of the cars. I followed the three males as they jumped a fence into the yard of […] Crescent. It was only at this point that I realized that something criminal was underway.

4. I was nervous and felt an unspoken pressure from the others to go along with this endeavour and felt that I couldn't turn around.

5. I watched the black male break a main floor window at […] with a long metal rod. He was wearing black gloves at that time and his face was partially masked. The black male went through the window first, and the rest of us followed. I assumed that I was going to assist in quietly stealing property and quickly leaving without incident.

6. We went upstairs and some of my fellow culprits pushed hard on the door to a bedroom to get in. I was not one of the people pushing the door.

7. The males pushing hard on the door broke it down and forced their way into the room. I saw an Asian male and female in the room. I accept that their names were William Ng and Xiao Yu, and that they had been physically resisting from the other side of the door. I covered my face at this point with my top so that the residents could not see me.

8. Although I cannot recall who was holding the crowbar, I knew that the black male and one of the other Asian culprits entered the room and that one of them was holding the crowbar. I accept that at least two of the males, including the black male, had their faces partially masked.

9. While I did not see this, I accept that the two of them tied up the two residents with plastic zip ties. I then went downstairs with the remaining Asian male culprit. I was shocked and nervous, but at this stage I knew I was a party to a home invasion robbery and to the conduct of two culprits who had entered the bedroom. I never held a crowbar, nor did I interact with the residents in any way.

10. The Asian culprit that I went back downstairs with went to the basement. I stayed on the main floor and I never went back upstairs. Within moments of the Asian culprit going downstairs, an audible alarm went off. The four of us all quickly ran out of the home.

11. While I did not see this, I cannot dispute that the black male culprit took the cell phone of Mr. Yu during this incident. As we ran out of the house, the black male went in one direction, and I hopped fences with the two Asian culprits. We were hiding in one of the residential yards when the police found us within minutes. I do not know where the black male culprit went.

12. I accept these facts to be "correct".

[7] The impact of this robbery/home invasion has been devastating upon the victims William Ng and Xiao Yu. Exhibit # 3, the victim impact statement, provides powerful evidence of the lasting and damaging impact this home invasion crime has had upon them. Their expressions of terror, shock, humiliation, anxiety and violation are set out in detail. Their feelings were real. They expressed their inability to be peaceful and relaxed and question whether they will ever be settled and not feel like prisoners in their own home.

The Circumstances of the Offender

[8] Kyle Chung is now 22 years old. He was born May 26, 1996. He committed this offence January 21, 2010 when he was 19 years old.

[9] Kyle Chung has no criminal or youth record. He co-operated with the police upon his arrest and provided an inculpatory statement admitting his involvement in this offence.

[10] Kyle Chung has pleaded guilty to robbery. It is clear that he accepts full responsibility and accountability for his actions. He has good insight and recognizes that he exercised terrible judgment by involving himself in this criminal offence.

[11] Kyle Chung has the support of his family and community – Exhibit #4:

• Tab 1 - Letter from his father, Ronald Chung
• Tab 2 - Letter from his mother, Angelia Chung
• Tab 3 - Letter from his brother, Craig Chung
• Tab 4 - Letter from his brother, Brandon Chung
• Tab 5 - Letter from his Uncle/Pastor, Rev. Michael Davis
• Tab 6 - Letter from his grandfather, Roy Chung
• Tab 7 - Letter from his employer, Rommy Meteyas
• Tab 8 - Letter from his co-worker, Christopher Reid
• Tab 9 - Letter from his aunt, Dawn Davis
• Tab 10 - Letter from grandmother, Zelma Lowe
• Tab 11 - Letter from grandfather, Granmilla Lowe
• Tab 12 - Letter from great uncle, Bernard Chung
• Tab 13 - Letter from his deacon, Wayne Chung
• Tab 14 - Letter from Youth Services Officer, Kristian Rajroop
• Tab 15 - Letter from fellow Alliance Church member, Kevin Boon
• Tab 16 - Letter from fellow Alliance Church member, Aneita Chong
• Tab 17 - Letter from long time close family friends, Anthony & Sonia Chan-Choong
• Tab 18 - Letter from long time close family friend, Avery Chin
• Tab 19 - Letter from long time close family friend, Nadine Murphy
• Tab 20 - Letter from long time close family friend, Valerie Chow
• Tab 21 - Letter from long time close family friend, Debra Chong
• Tab 22 - Letter from long time close family friend, Adrian Mcreddie
• Tab 23 - Letter from long time close family friend, Valda Walker

[12] Kyle Chung has performed a total of 120 hours of community service work.

Exhibit # 4, Tab 24 - Letter from the Salvation Army confirming the completion of 85 hours of community service.

[13] Kyle Alexander Chung has successfully enrolled at Seneca College in the Business Administration - Management Studies program. He has completed the fall term – September, 2011 – December 2011 as part of a 6 term – 3 years program.

Exhibit # 4, Tab 25 – Letter from Seneca College

[14] Kyle Chung has an excellent pre-sentence report.

Exhibit # 1.

[15] Kyle Chung has demonstrated significant empathy for and understanding of the victims' suffering.

[16] Kyle Chung's genuinely regrets his actions. He apologized to the victims when he spoke in court March 9, 2012. The comments contained in his pre-sentence report - Exhibit #1 and reflected in the many letters of support – Exhibit #4 speak clearly to the profound remorse felt by Kyle Chung for the wrong he has inflicted upon the victims.

[17] The events of January 21, 2010 proved an epiphany for Kyle Chung. Following his release from custody, more than 2 years ago, on very restrictive terms of bail, Kyle Chung has not been involved in any criminal activity. During this long period of time Kyle has busied himself with work, has completed 120 hours of volunteer community work and is now enrolled in school at Seneca College. All sources report with favour and support regarding Kyle Chung.

What is the Fit and Appropriate Sentence?

The Governing Principles

[18] By its very nature, sentencing is profoundly contextual, a delicate exercise requiring a fine balance of competing, if not antagonistic objectives, principles and factors. The nature of the sentencing process is inherently individualized, R. v. Jacko, 2010 ONCA 452.

[19] Indeed, it is for these reasons that it is understandable that appellate courts afford trial courts wide deference upon review of sentencing judgments, R. v. Jacko, supra.

The Fundamental Purpose of Sentencing s. 718

[20] Section 718 of the Criminal Code describes the fundamental purpose of sentencing a person convicted of crime. That purpose is to contribute, along with crime prevention initiatives, the respect for the law and the maintenance of a just, peaceful and safe society by imposing just sanctions on the offender. Among the sentencing objectives that underlie the sentencing decisions are:

• Denunciation
• Deterrence
• Rehabilitation
• Reparation from harm done
• Promotion of offender responsibility
• Acknowledgement of harm done

[21] Restorative justice components of the sentencing process are prominent in the last four sentencing objectives set out above.

[22] Restorative justice objectives are of particular importance in determining the sentence to impose on youthful offenders. Restorative justice objectives – which under pins 718(d) and (f) involve reintegration into the community.

[23] General to the sentencing process is the need for an offender to take responsibility for and acknowledge the harm caused by his conduct, R. v. Jacko, supra; R. v. Gladue, [1999] 1 S.C.R. 688.

The Fundamental Principles of Sentencing s. 718.1

[24] The fundamental principle of sentencing - which is largely codified in s. 718.1 of the Criminal Code - is that a sentence must be proportionate to the gravity of the offence and the degree of responsibility of the offender.

[25] Inherent in this fundamental principle is a legislative recognition and acknowledgement that sentencing is very much an individualized process, ill suited for a "one-size-fits-all" approach, R. v. Jacko, supra.

[26] Degrees of responsibility vary. Some are principals, other aiders, abetters, counsellors or parties to a common unlawful purpose. Even within each mode of participation, some bear greater responsibility than others. Although all are parties in law and equally guilty of the offence, greater punishment is the usual consequence of greater responsibility, R. v. Jacko, supra.

Other Sentencing Principles

Aggravating and Mitigating Circumstances s. 718.2(a)

[27] Sentences should be reduced to take into account mitigating circumstances relating to the offence or the offender, or increased to account for any aggravating circumstances.

Parity of Sentence s. 718.2(b)

[28] Similar offenders who commit similar offences in similar circumstances should receive similar sentences. This principle does not command identical sentence for co-accused, only similar sentences for co-accused whose participation in the offence is similar and who have similar antecedents, present circumstances and future prospects. Disparity of sentences among co-accused is not per se error, R. v. Jacko, supra.

Imprisonment – Last Resort s. 718.2(e)

[29] A sentencing judge should consider alternatives to the use of imprisonment as a penal sanction. The principle of restraint is operative. Except in cases in which no other sanction or combinations of sanctions is appropriate to the offence of offender, imprisonment is the sanction of last resort.

Home Invasions – The Tariff

[30] The Criminal Code directs judges to treat a home invasion as an aggravating factor in sentence. The Ontario Court of Appeal has stated that offences involving home invasions must be dealt with severely. Cases involving home invasion "reflect a gamut of sentencing dispositions" with cases "from as low as four or five years, to as high as eleven to thirteen years. Certainly, a stiff penitentiary sentence is generally called for", R. v. Wright (2006), 216 C.C.C. (3d) 54.

[31] The comments in R. v. Wright, supra, must be read in the context of later comments made by the same court in R. v. Jacko, supra, at paragraphs 89 and 90:

89. "...our decision in 'Wright' and cases following its lead describe a range of sentence for 'home invasion' cases, it is clear from 'Wright' itself that these cases require an especially nuanced approach to sentencing that involves a careful examination of the circumstances of the case at hand, of the nature and severity of the offenders' conduct and circumstances of each offender involved in the offences: Wright at para. 24.

90. Sentencing 'ranges', such as that described in Wright, are not immovable or immutable. They are and represent guidelines, of greater or lesser utility depending upon the breadth of the range. Individual cases may fall within or outside the range. To consider a range of sentence as creating a de facto minimum sentence misses the point, ignores the fundamental principle of proportionality and is not faithful to the teachings of Wright itself. Individual circumstances matter.

[32] R. v. Jacko, supra, was authored by Watt J.A. – an experienced, well recognized and respected criminal law jurist. The other two members of the panel who joined Watt J.A. and concurred in his reasons were Chief Justice Winkler and Justice Goudge J.A., the latter of whom, significantly, was also a member of Ontario Court of Appeal panel that rendered the decision in R. v. Wright, supra.

Is Jail the Sanction of Last Resort?

[33] Both counsel have jointly submitted that, upon a consideration of the evidence, the offence, the offender and the principles of sentence which are engaged, jail is the sanction of last resort for Kyle Alexander Chung. It remains only to settle the quantum of the jail sentence – the most challenging task of all.

Application of the Sentence Principles: The Fit and Appropriate Sentence

[34] This court is confronted with a most difficult sentencing decision - one that requires a delicate balancing of competing, if not antagonistic, sentencing objectives, principles and factors. Should Kyle Alexander Chung receive a reformatory sentence of 2 years less one day as urged by the Defence or should he receive a penitentiary sentence in the range of 4 years as urged by Crown Counsel?

[35] Kyle Chung's offence was serious, involving the invasion of an occupied home. Property was taken. Occupants were assaulted, injured and threatened. While some of the home invaders were fully aware of the prior agreement or arrangement to commit a home invasion robbery – Kyle Chung was not. Nevertheless, he was a party to the purposeful conduct of the others.

[36] On the other hand, Kyle Chung has undertaken remarkable rehabilitative steps to make reparations for the harm caused by his crimes – to take responsibility for his conduct and to reduce the risk of recidivism.

[37] Must this court conclude that a penitentiary sentence is the only sentence which can be imposed as a matter of principle given that Kyle Chung was a party to a home invasion robbery? Or may this court conclude that this one of the exceptional cases, one which recognizes that while the paramount sentencing principles of denunciation, deterrence and protection of the community are fully engaged – yet allow for a reformatory sentence given principles of restorative justice, reformation and rehabilitation are also active principles fully engaged as well?

[38] Kyle Chung has clearly jettisoned his brief foray into antisocial behaviour. He has abandoned his confederates and has resumed responsibilities as a law abiding citizen, consistent with his prior character. The passage of time since this offence was committed confirms the legitimacy of his efforts. Employment. Support from his community, friends and family. College admission. He is possessed of deep focused regret for his actions and great empathy for his victims.

[39] In my view, a sentence at the upper end of the reformatory range accords with the proper weight to the principle sentencing objectives engaged in this case: denunciation and deterrence. Such a term also pays heed to the relevant sentencing principles of restorative justice, reformation and rehabilitation.

[40] I find the comments of Watt J.A. in R. v. Jacko, supra, to be most instructive given the striking similarity between the offence and the facts before that court and the offence and facts before this court.

The length of sentence I consider appropriate in this case falls outside the range of sentence described in Wright, supra, but as the Wright court itself makes plain, the range of sentence described there is a guideline, of general service, not of universal application. Exceptions exist. This case demonstrates one of them.

The principal drivers of the range of sentence described in "Wright", supra, were sentencing objectives of denunciation and deterrence. No restorative justice objectives were at work in Wright, unlike here where their influence is profound.

(Jacko, supra, para. 97-98)

[41] Applications of these principles were evident in the cases of R. v. Bao et al., 2007 ONCJ 570, Bloomenfeld J. and R. v. Shirley, 2009 ONCJ 266, DeFilippis J. in which reformatory sentences not penitentiary sentences were imposed and with which I agree.

Sentencing

[42] Kyle Alexander Chung is sentenced to a total of 2 years less 1 day in provincial reformatory. He will be placed on probation for 2 years following his release from jail with the following terms:

1. Keep the peace and be of good behaviour.

2. Appear before the Court when required to do so by the Court.

3. Notify the Court or the Probation Officer in advance of any change of name or address.

4. Promptly notify the Court or Probation Officer of any change of employment or occupation.

5. Report forthwith in person upon his release to a probation officer and thereafter as required and during the first year at least once per month.

6. Not to associate or communicate with William Ng, Xiao Yu, Zhenpeng Huang, Anthony Ming, or Biao Chen.

7. Not to attend within 100 metres of the place of residence, employment, or education of William Ng, Xiao Yu, Zhenpeng Huang, Anthony Ming, or Biao Chen.

8. Not to possess any weapons as defined by the Criminal Code.

9. Make reasonable efforts to seek and maintain gainful employment when not enrolled in school or to be enrolled in school on a full time basis.

10. Take any counselling or educational programs as directed by his Probation Officer.

11. Sign any releases as requested by his Probation Officer.

12. For the first year of his probation order he will abide by a curfew and be in his residence by 11:00 p.m. and remain in his residence until 6:00 a.m. the following morning except for school/or employment purposes.

13. Perform 120 hours of community service work as directed by his Probation Officer, to be completed before the end of his probation term.

[43] Kyle Alexander Chung shall also be bound by the terms of the following two orders:

i) Not to possess any firearms, ammunition, explosive substances or weapons for a period of 10 years as set out in s. 109 of the Criminal Code.

ii) To provide a sample of his bodily fluid for D.N.A. data banking purposes as required by s. 487.051 of the Criminal Code given that robbery is a primary designate offence pursuant to s. 487.04 of the Criminal Code.

Note: The official version of these reasons for judgment is the transcript in the court file. In the event that there is a question about the content, the original in the court file takes precedence. These reasons for sentence may have undergone editing changes.