Court File and Parties

Court File No.: 4813-998-11-329298-00

Ontario Court of Justice

Between:

Her Majesty the Queen

— and —

Dillon Brown

Before: Justice A. Hall

Heard on: June 21, 2012

Reasons for Sentence released on: August 24, 2012

Counsel:

Maureen Pecknold, for the Crown

Frederick Shanahan, for the accused Dillon Brown

HALL, J.

Overview

[1] On the 2nd of May 2012, Mr. Dillon Brown (hereinafter Mr. Brown) pleaded guilty, before me, to one count of break and enter commit theft and one count of robbery.

[2] These offences occurred on the 28th of March of 2011.

[3] The matter was adjourned to the 21st of June 2012 for the purposes of preparing a pre-sentence report and submissions on the question of sentence. On that day, the matter was further adjourned to today's date for my decision.

Facts

Circumstances of the offence as follows:

[4] On the 28th of March 2011, Mr. Brown was in the company of three other males. They went to the building at number E[…] Avenue East in the City of Toronto. They were all wearing hoodies and jackets to disguise their appearance.

[5] While in the building, Mr. Brown and his accomplices made their way to the 9th floor and forced their way into apartment number 905 which belongs to Ms. Rosalee Suballie.

[6] These men ransacked the apartment and removed several pieces of electronic equipment, including Wii video game systems, two digital cameras, and a 24-inch flat screen television.

[7] The entrance and exit of these men from the building was captured by the building surveillance system.

[8] On the same day this group of men, including Mr. Brown, went into another building that is located at M[…] Road, in the City of Toronto.

[9] While in the building, the men went to 14th floor and knocked on the door of apartment number 1405. When the occupant, Mr. Mohamed Islam, answered the door the men forced their way into the apartment, essentially invaded the home.

[10] The men were armed with a twelve inch silver blade knife, and demanded monies and valuables from Mr. Mohamed Islam and his son Ashrafold Islam.

[11] Mr. Mohamed Islam and his son Ashrafold Islam were assaulted by the group with punches being delivered to the face and mouth area of their bodies. The father and son were directed to lie face down on the bed. Members of this group of men told the occupants that they should not look at them and that if they call the police they will come back and shoot them.

[12] The home was ransacked and the group of men took the following:

• Three hundred dollars in cash,
• Play Station system,
• Play Station games,
• Unknown quantity of gold jewelry,
• Male wrist watch, and a
• Lap top computer.

[13] The building surveillance security system captured images of the group of men both entering and exiting the building, despite their failed attempts to disguise their respective appearances.

[14] During police investigation, they obtained certain information implicating Mr. Brown in the break and enter and robbery.

[15] He was still in possession of the property stolen from the residencies.

[16] The police were also able to compare the security surveillance footage and concluded the same group of men was responsible for break and enter at E[…] Avenue East, Toronto and the robbery committed at M[…] Road, Toronto.

[17] On the 19th of April 2011, a search warrant was executed and a search took place at the residence of Mr. Brown. The police found clothes, shoes, a baseball cap and two jackets similar to those caught by the security surveillance footage and a digital camera with images of the complainant from the E[…] Avenue, Toronto where the break and enter was committed.

Circumstances of the offender

[18] Mr. Brown is twenty (20) years of age. He was born on the […] 1992 in Toronto, Ontario.

[19] His criminal record is as follows: as a youth in 2010, there was finding of guilt for Sexual Interference (x2) and Invitation to Sexual Touching. He received a disposition of two years' probation on each charge concurrent.

[20] In 2010, as an adult, he was convicted of Assault Causing Bodily Harm and received a Suspended Sentence and two (2) years' probation, after serving (17) seventeen days in pre-trial custody.

[21] His mother was seventeen (17) years of age when she gave birth to her son. Her relationship with the child's father ended just about the time of Mr. Brown's birth.

[22] From the pre-sentence report, Mr. Brown has had precious little contact with his biological father for most of his life. As a result, Mr. Brown is a young man that has grown up without any emotional support or positive male guidance in his life from his father. Financial assistance to both mother and child were minimal at best.

[23] Mr. Brown's mother, Tamara Brown, reported she tried to encourage contact between son and father, without success, primarily because her son's father is an immature individual who struggles with alcoholism and has conflict with the criminal justice system. (See pre-sentence report; page three.)

[24] When Mr. Brown was arrested, he was living with his mother and her two other children. Ms. Tamara Brown and her children lived for many years in a subsidized housing community. Illegal drug use, violence, and other criminal behavior are common occurrences in this community.

[25] Both Mr. Brown and his mother are of the view that the challenges of their impoverished environment might have had a negative impact on his life style choices.

[26] In his teen years, Mr. Brown started to develop difficulties both at school and at home. He was having trouble coping at school and began skipping school classes. He exhibited behavioral problems that led to a number of suspensions from school.

[27] At home, Mr. Brown and his mother's relationship were experiencing significant stress and conflict. The Children's Aid Society was contacted to assist the family during that difficult period.

[28] Prior to being charged with these offences, Mr. Brown was on bail for some other criminal offences. During that time he lived in Whitby, a neighborhood east of his Toronto community.

[29] During this time he had managed to return to school and appeared to be performing well academically and had been in full compliance of all conditions set out by the court. Once the matter had been addressed and he returned to his mother's residence, he fell into old habits, negative influences and within a brief time was arrested for the current matter.

Pre-sentence report pages 3 & 4

[30] Mr. Brown has been in custody since the time of this arrest. During this period, he participated and received certificates of completion from the "Brighter Days" workshop in anger management, as well as a correctional services' program in substances' abuse.

[31] Mr. Brown is also a client of the John Howard Society of Toronto. While at the detention centre, he actively participated in the HIPP (Helping Initiate Positive Participation) program.

[32] This counseling initiative is designed to help persons of African Canadian decent that are currently housed at the Toronto East detention Centre.

[33] In a letter from the Society, they have indicated a willingness to continue to assist Mr. Brown with individual counseling and other programs that might assist him in his reintegration.

[34] Mr. Brown is a young man that has support in the community. His mother, Tamara Brown, describes her son as a kind hearted individual who tries to fit into his surroundings, and believes that if given the opportunity he can succeed (see page 3 pre-sentence report).

[35] His girlfriend of close to two years, Ms. Kira Huszar, characterized their relationship as "positive in manner" and she "noticed a change in (Mr. Brown's) outlook as result of the current matter" (see page 4 pre-sentence report).

[36] Ms. Winifred Satchell, the aunt of Mr. Brown, wrote a letter in support of him. In it, she essentially noted that Mr. Brown needs guidance to find an appropriate direction for his life. He can accomplish much in a positive environment. Her husband, Mr. Marvin Satchell, is willing to assist Mr. Brown with work in the construction trades with him.

[37] They are also prepared to have Mr. Dillon Brown reside with their family in the town of Stouffville once he is released, so that he may focus on his new direction.

Impact on the Victims and/or Community

[38] There were no impact statements tendered by the Crown in this matter. One cannot assume the experiences that these victims have had little or no impact, and they are just simple carrying on with their lives as usual.

[39] It would not take much imagination to appreciate how violated, fearful, unsecured and vulnerable the victims must have felt, as a result of the criminal actions of Mr. Brown and his companions.

[40] Note the observation of Nordheimer J. in R. v. H. (P), 2006 OJ No. 885:

"Home invasions are particularly threatening to individuals, because such robberies strike at the fundamental and natural desire and expectation that every person has, that is, to feel safe and secure in their homes. Whatever may happen in the outside world, people have an innate feeling that their homes are one inviolate sanctuary". The sanctity of the home must clearly be violated when a citizen experiences the effects of a break and enter.

Legal Parameters

[41] The sentences for break and enter, theft, and home invasion style robbery charges are generally a penitentiary term of five years and up. See R. v. Walsh, 2011 ONCA 325, 2011 OJ 1835(C.A). It is important to note though, this is a guideline and not a directive from the Appellate Court.

[42] In R. v. May, 2011 ONCA 74 at Para 6, the Court noted:

The trial judge was well aware of the seriousness of the offence. His reasons show that he was aware of the applicable principles of sentencing and the range of sentence for home invasions set by this court.

[43] The trial judge was also aware that a sentence range is not "fixed in stone", but is ultimately provided for the guidance of a trial judge who must exercise their sentencing discretion on a case-by-case basis. Sometimes the proper exercise of that discretion takes the sentence out of the range.

[44] The question of the appropriate sentence for Mr. Brown will be addressed later in the judgment.

Positions of the Crown and Defence

[45] The crown's position is that, given Mr. Brown's criminal record, the serious nature of break and enter, and the home invasion style robbery; both offences occurring on the same day, Mr. Brown's sentence should be that of a five (5) year term in the Penitentiary less pre-trial custody.

[46] The defence submits, given Mr. Brown's youth, the challenging circumstances of his upbringing, the strong support he has in the community and the real prospects he has demonstrated for rehabilitation, a total sentence of twenty months in custody is sufficient in these circumstances.

Mitigating and Aggravating Factors

[47] A sentence should be increased or reduced to account for any relevant aggravating or mitigating circumstances.

[48] Mitigating factors are to be found on a balance of probabilities, while aggravating factors are to be considered after finding beyond a reasonable doubt.

[49] Mitigating and aggravating factors are those that are related to the gravity of the offence or moral blameworthiness of the offender (see R. v. Brodofshie, 2012 ONSC 1889).

Mitigating factors

[50] Mr. Brown, a youthful offender, entered a plea of guilty to these offences prior to trial date.

[51] Considerable resources were saved by the state as result of this guilty plea.

[52] The victims of these offences were spared the necessity of testifying at the trial, as a result of the guilty plea.

[53] Mr. Brown, by his plea of guilt, has acknowledged responsibility for his actions, and this in itself is an expression of remorse.

Aggravating factors

[54] Mr. Brown, in the company of his companions, committed both offences on the same day and he has a criminal record that includes offences of violence.

[55] The victims of the home invasion style robbery were threatened and assaulted by the intruders that were armed with a knife. (There was no evidence that Mr. Brown was the individual whom had the knife or delivered the threat, needless to say he was a party to the offence).

[56] The offences were obviously planned and pitiful attempts were made to disguise the identity of the intruders.

[57] The offences were committed three months after Mr. Brown was placed on probation.

Reasons

[58] The fundamental purpose of sentencing and its objectives are denunciation, general and specific deterrence, separation of offenders from society, rehabilitation, making reparations and promotion of a sense of responsibility in the offender (s. 718 C.C.C.).

[59] The fundamental principle of sentencing is "proportionality": a sentence must be proportionate to the gravity of the offence and moral blameworthiness of the offender (s. 718.1 C.C.C.).

[60] Consideration must be given to similar sentences for similar offenders for similar offences in similar circumstances (s. 718.2(b) C.C.C.).

[61] This sentence is for the offences of break and enter and robbery that relates to a home invasion. That is, the offenders broke into a dwelling house that they knew was occupied at the time, for the purpose of committing and they thereby violated the sanctity of and security of that place using threats and physical violence to achieve their ends (see R. v. Whalen and May, 2010 ONSC 2719 Para 61).

[62] In crafting the appropriate sentence for this kind of offence, the primary focus and objectives that must be given priority are: general deterrence and denunciation.

[63] In R. v. Wright, 83 O.R. (3d) 427 Blair J.A.:

Explained that while rehabilitation should be considered, the objectives of protection of the public, general deterrence and denunciation should be given priority… a stiff penitentiary is generally called for.

[64] This position was reconfirmed by the court last year in R. v. Walsh, 2011 ONCA 325, O.J. No 1835 (C.A.).

[65] The Court in Wright noted as well, in my view however, "home invasion" cases call for a particularly nuanced approach to sentencing.

[66] They require a careful examination of the circumstances of the particular case in question, of nature and severity of the criminal act perpetrated in the course of the home invasion, and the situation of the offender.

[67] In this case, I am also guided by the caution found in R. v. S. (J) as my brother Lipson .J correctly noted in R. v. Sutherland, 2010 ONCJ 103 Para 20, when the court emphasized that the sentencing judge must be cautious.

[68] The label "home invasion" is elastic and can cover a broad range of offences. He warned against generalizing across all home invasions when determining an appropriate sentence since "one size does not fit all".

[69] Mr. Brown is a young man of twenty years of age, born and raised in a poor and marginalized community in the City of Toronto. He had very little in terms of positive male guidance in his young life. In school he performed poorly and his academic career was essentially nonexistent. (See the pre-sentence report, page 5).

[70] According to the pre-sentence report, his mother reported, as a youth Mr. Brown was diagnosed with Attention Deficient Disorder and Oppositional Defiance Disorder.

[71] I harbor little doubt that this young man's background and life situation contributed to his difficulties and conflict with the criminal justice system.

[72] Prior to being in custody on these charges, Mr. Brown lived in Whitby for a short time, during which, while under community supervision as a youth, the subject performed well during that period of time.

[73] Ms. Rampino (who had been supervising Mr. Brown) stated that he had reported well and made some positive strides to improve. She explained that he had enrolled in a school program that would allow him to receive high school credits. She stated that he had been attending and that she had not received any negative report from the school. She was encouraged with the progress that he had made to that point and that he had been doing well and remained in compliance with the program.

[74] Unfortunately Mr. Brown had to withdraw from the program after returning to his family residence and transferred his supervision to Scarborough (see page 4 and 6 of the pre-sentence report).

[75] After careful consideration of Mr. Brown's age, his background as African Canadian youth, particularly the challenges he faced growing up, the support he has in the community, his performance while under supervision in Whitby, Ontario and his performance in custody, (meaning the programs he took and participated in) I am of the view there is a realistic potential for rehabilitation.

[76] On the other hand, I must impose a sentence that addresses the seriousness of the offences he committed.

[77] While bearing in mind the commanding objectives of sentencing in these kinds of cases, i.e. general deterrence and denunciation and given his youthful age, I am mindful of the principle of restraint in sentencing.

[78] I respectfully decline to impose the sentence that the defence recommended, because it is not a sufficiently serious penalty for such a serious crime.

[79] I also respectfully decline to impose the sentence recommended by the Crown because such a sentence would be far too crushing and, in my view, would destroy any real prospect of rehabilitation.

[80] In my view the appropriate sentence, taking into account the sixteen (16) months pre-trial custody served, I then impose a sentence of an additional twenty (20) months to be served in a Provincial Reformatory facility for the robbery and ten (10) months to be served concurrently for the break and enter theft. I recognize that the sentence that I am imposing is a departure from the "range", however, the circumstances of this case warrants and justifies this action (see R. v. May, 2011 ONCA 74).

Ancillary Order

[81] Mr. Brown, you are order to provide a sample of your DNA pursuant to s. 487 of the Criminal Code. There will be, as well, an order pursuant to s. 109 of the Criminal Code prohibiting you from possessing any firearm or ammunition for a period of ten (10) years.

Probation Terms

[82] Additionally, I place you on two (2) years' probation following your release, with the usual statutory terms set out by the Criminal Code plus the following:

• Live at an address approved by your supervising office and do not change this address without prior approval of your supervising officer.

• Make all reasonable efforts to find and maintain stable full-time employment and/or schooling.

• Not to associate with any person with a criminal record, unless it is an immediate family member.

• Attend and complete any and all counseling programs recommended by his supervising officer.

• Sign any releases necessary to allow the supervising officer to monitor programming.

• Not to possess any weapons as defined in the Criminal Code of Canada.

• Not to be within 100 meters of any place the victims live, work, attend school or happen to be.

[83] I want to thank both counsels for their invaluable assistance.

Signed: "Justice A. Hall"