Information No. 1411 998 11 742 03
1411 998 11 820 01
Citation: R. v. Moradi, 2012 ONCJ 616
ONTARIO COURT OF JUSTICE
HER MAJESTY THE QUEEN
v.
KRISTOPHER MORADI
REASONS FOR SENTENCE
BEFORE HIS HONOUR JUSTICE G.J. BROPHY
on July 31, 2012, at GODERICH, ONTARIO
APPEARANCES:
T. DONNELLY Counsel for the Crown
S. Stanfield Counsel for Kristopher Moradi
BROPHY, J. (orally):
This is a sentencing decision involving Kristopher Moradi. Mr. Moradi has plead guilty to five separate offences. They are as follows:
One: Theft of a safe while armed with an offensive weapon, contrary to Section 344(b) of the Criminal Code;
Two: Wearing a mask while committing an indictable offence, contrary to Section 351(2) of the Criminal Code;
Three: Using an imitation firearm while committing the indictable offence of robbery, contrary to Section 85(2)(a) of the Criminal Code;
Having in his possession a prohibited weapon while he was prohibited from doing so by an order made pursuant to Section 109 of the Criminal Code, this being an offence contrary to Section 117.01 of the Criminal Code.;
And finally, number five, a breach of probation by failing to comply with a requirement that he not possess any weapons, contrary to Section 733.1(1) of the Criminal Code.
All of these offences occurred on the 28th of October, 2011. Mr. Moradi entered guilty pleas to these offenses on 28 March 2012 and 3 July 2012. A presentence report was ordered on March 28th 2012 and submissions were received on 3 July 2012. The matter was then adjourned to 30 July 2012 for sentencing. It should be noted that the Crown proceeded by way of indictment.
The issue in this sentencing decision is the proper range of penalty. The Crown and defence counsel have agreed that a penitentiary term is appropriate. The length of that term is in question. A subsidiary issue is whether enhanced credit should be given for pre-sentence custody.
Counsel filed an agreed statement of facts. On 28 October 2011, at approximately 10:50 a.m., Mr. Moradi and another male person burst into the home of Ken Schell in the Village of Fordwich in the Township of Howick in the County of Huron. Mr. Schell was home along with his daughter, Kendra, age 17 years and his son, Cody, age 15 years, as well as a family friend, Patricia Husnick, age 21 years.
Mr. Moradi and his associate entered the home through an unlocked front door, interrupted Mr. Schell who was on the telephone. One of the males punched Mr. Schell in the head with a silver gun and sprayed him with pepper spray. Mr. Schell ran into his bedroom and shut the door and then went out a back entrance of the house from that room. He went to a neighbor’s residence to call the police. After he left, one of the intruders kicked in the door to his bedroom and took from the room a safe.
Kendra Schell was upstairs and heard the door being kicked in and also some yelling. She went downstairs and saw at least one of the men with a mask on and at that point she felt the effects of pepper spray, although it is unclear as to whether she was sprayed directly or was impacted by the residual cloud of pepper spray. Ms. Schell retreated to her brother’s room and got a stick and went back into the main part of the house. She saw one of the men entering her father’s bedroom. She saw that he was wearing a mask. Mr. Schell had also noted the masks on the two men. The person she thought was a younger male was standing in the area and he had a gun in his hand and he told her to get back.
The two men exited the house with the safe and jumped into the motor vehicle they had arrived in and left the scene. Kendra Schell noted the licence plate on the vehicle and the police arrived at 11:05 a.m. The incident had taken approximately ten minutes in all.
The police located a pair of plastic flex cuffs at the scene where the getaway vehicle had been parked and at about 500 metres west of the Schell residence they found a balaclava, a bandana, a pair of jeans, two pairs of latex gloves and three sets of flex cuffs. Later the balaclava and bandana was tested at the Centre of Forensic Sciences and DNA results came back for Mr. Moradi’s co-accused, one Ronald Harrison.
Approximately an hour later the motor vehicle bearing the licence plate noted by Kendra Schell was seen by Waterloo Regional Police in the Woolwich Township area. It now had two male passengers and a female person together with a child. Police in that area worked diligently to track down the individuals and ultimately they were located at a farm where they had apparently stopped because of vehicle problems. The farm family evacuated the house and the police moved in and arrested Mr. Moradi, who had tried to escape on foot, Mr. Ronald Harrison, the person identified through the DNA tracing, and Ms. Vanessa Farhall, who had her four year old daughter, MacKenzie Harris with her. Found with the persons arrested was clothing that was similar to what was described by the Schells as being worn by the persons who invaded their home, along with a knapsack containing an Ekol, E-K-O-L 9 mm flare gun on which the serial number was obliterated, tape, a black baseball cap, a security belt, black cap, black balaclava and a black plastic mask. Inside the security belt were blue latex gloves similar to those recovered 500 metres from the Schell residence.
The family that lived on the farm found prescription pill bottles in the house that had the name Kenneth Schell on them and gave them to the police.
The next day the police attended again and executed a search warrant on the 2008 black Jeep Commander motor vehicle bearing the licence plate marker BLDF 259. They found in that vehicle a black expandable baton. That same day they also attended at the farm and found in an attic of a shed that had been entered by Mr. Moradi and Mr. Harrison, the safe that had been taken from the Schell residence in Fordwich. The safe had been broken open and items removed.
The Ekol handgun and an associated detachable cartridge magazine were examined at the Centre for Forensic Sciences. It was determined that it was a starter pistol and not a firearm as defined under the Criminal Code. However, it resembled with near precision a Beretta Model 92FS Compact Semi-automatic pistol. Therefore it is a replica firearm as defined under Section 84(1) of the Criminal Code of Canada. The pepper spray and the second hand gun were not recovered.
Mr. Moradi was born on […] 1992. At the time of these events he was 19 years of age and is now 20 years old. The pre-sentence report describes a dysfunctional childhood. Mr. Moradi said that he grew up in a non-conventional household. From ages 12 to 15 he resided in a group home as a result of poor behavior at both home and school. He only has nine credits towards his Ontario Secondary School Diploma. He says that he was suspended from school on numerous occasions as a result of fighting with other students. He says he does intend to complete his OSSD and hopes to attend post-secondary school. Mr. Moradi has no history of employment. He says that substance use has never affected personal relationships or his ability to be employed or his mental health and has had no impact upon his involvement with the law including the offence before the court today. He reports no referral or participation in substance abuse treatment programming or counseling. He also advised the maker of the report that there were no mental, physical or emotional health problems that he is subject to and has never attempted or threatened to commit suicide. And he has no past or present involvement in any community based activities, leagues or volunteer work.
The maker of the pre-sentence report indicates that Mr. Moradi’s response to community supervision in the past has been poor with a history of non-reporting and failing to comply with rehabilitative programs. In sum, Mr. Moradi says to the maker of the pre-sentence report that the offence was committed because he had no money and he was invited to participate by one of his co-accused. The maker of the pre-sentence report notes that Mr. Moradi expressed no empathy towards the victims or any remorse for his involvement of what occurred in the offences.
The presentence report is dated 4 May 2012. On 3 July 2012, Mr. Moradi, through his counsel, provided to the court a letter wherein he does express remorse and seeks to convince the court that he has changed and he will do better in the future. He describes the sentencing process as a serious wake up call. In particular he responds to the victim impact statement that was filed with the court, a copy of which he had the opportunity to read, as motivating him to understand the seriousness of what he did. Mr. Moradi also prepared a letter addressed to the Schell family wherein he apologizes for his actions and says that he understands the seriousness of what happened. He also said that he can in the future be a better man and asks effectively for their forgiveness. As noted in the letter to the Schell family, he states that it was addiction that caused him to do a large part of what he did. This is in conflict with what he told the maker of the pre-sentence report. It is accepted that the two letters are an expression of remorse, as is the entry of the guilty plea, however this has to be balanced against what Mr. Moradi told the probation officer when preparing the pre-sentence report and has to be taken with a grain of salt.
The presentence report shows a criminal record for Mr. Moradi with a conviction on 10 August 2010 for assault causing bodily harm and a breach of disposition under Section 137 of the Youth Criminal Justice Act. He was sentenced to 60 days imprisonment and placed on probation for two years. At that time he was made subject to a Section 109 firearms prohibition order.
The victim impact statement consists of an e-mail sent by Kendra Schell to the Victim Witness Assistance program in Goderich and is dated 10 May, 2012. In that e-mail, Ms. Schell, who was 17 at the time of the incident, describes eloquently the concerns she and her family have about their personal safety. She talks about how she and her siblings wanted their father to acquire a gun licence in order to fend off any further possible problems. She describes how they now lock the doors of their house, not withstanding that they live in a small village where everyone knows each other and where they previously did not concern themselves with locking doors on a constant basis. They have even gone so far as to put individual locks on their bedroom doors. Each of the family members now has a baseball bat in close proximity to their rooms to protect themselves. She goes on to detail the fears that they have all experienced and the extra precautions they are now taking automatically about their security. Ms. Schell describes how she even has trepidation in leaving her home and walking to the bus stop because of what she thinks might happen to her home when she’s not there. All of this has resulted in her personally experiencing attendance difficulties at school and falling grades. Ms. Schell has described very clearly the impact of this invasion on the sanctity of her family home and it is deeply troubling.
The Crown’s position is that there should be a penitentiary term imposed in the range of six to eight years less the pre-sentence custody. As at today the presentence custody is 276 days. This is approximately nine months. The Crown then is asking for a sentence in the range of 5 years and three months to seven years and three months.
There was a misunderstanding between the Crown and defence counsel with respect to a joint position they thought they had. The joint submission foundered on the basis of what to do with the presentence custody. Mr. Moradi has been in custody since October the 28th 2011 and as at July the 3rd that amounted to 249 days. As at July 31st it will be 276 days. On 3 July 2012 the Crown advanced the position that a proper penalty as a function of the joint submission should be 44 months in custody in addition to presentence custody. As at 3 July 2012 this would have been an effective penalty of 4 years and 4 months. Mr. Stanfield immediately noted that his understanding of the joint submission was that it was to be 44 months less the presentence custody.
In the absence of a joint position the Crown then went back to first principles and referred the court to two decisions: R. v. Nelson, 2001 5235 (ON CA), 2001 O.J. No. 2585, ONCA and R. v. Wright, 2006 40975 (ON CA), 2006 O.J. No. 4870, ONCA. These decisions stand for the proposition that the proper penalty for a home invasion case is mid-range penitentiary. The Crown then argues that in this case the proper penalty the court should consider is six to eight years in custody. She appreciates however, that having advanced a joint submission at 44 months plus the presentence custody, it puts the Crown in an awkward position with reference to the proper penalty. In this case the Crown points to the fact of the home invasion, the violence displayed, the use of masks, the presence of firearms, imitation or otherwise, the use of pepper spray and the aggravating principles set out in Section 348.1 of the Criminal Code with respect to the fact that the dwelling house was occupied at the time of commission of the offence and that the person in committing the offence, knew or was reckless as to whether the dwelling house was occupied and used violence or threats of violence to a person or property. The Crown then says that in the absence of a joint submission, and in dealing with the first principles, the Court should actively consider a six to eight year term of imprisonment.
The defence refers to R. v. Whalen & May, 2011 ONCA 74. Whalen is W-H-A-L-E-N, and Madam Reporter, I have the citations available for you. This was a decision where the trial justice imposed a reformatory term of less than two years to two individuals who had both plead guilty to a robbery involving a home invasion. The Court of Appeal acknowledged that “…the trial judge ultimately saw substantial potential for rehabilitation for both of these young men. He saw that there was a real opportunity for them to become productive law-abiding citizens” (See paragraph 7) The court of Appeal went on to say that there was a basis for that finding giving the particular facts involving the two offenders. Defence counsel also points out that the two offenders in Whalen & May were very young and not involved in the extraordinary events of the home invasion. Mr. May was upstairs when a particular act of violence occurred and was not a direct participant, and Mr. Whalen was the driver of a getaway vehicle and was not in the house at all.
It is also noteworthy both of the offenders in that case did not serve long periods of presentence custody and were on bail for approximately a year and a half during which time they had acquitted themselves very well.
The Court of Appeal in that decision in paragraph 8 set out the reasons for appellate non-interference and the difficulties inherent in sentencing in a matter involving a home invasion as follows: “The trial judge had to shape a sentence that maximized the potential to achieve rehabilitation, which as indicated was a very real prospect in this case. However, at the same time, he had to impose a sufficient penalty to adequately reflect the needs of general deterrence and denunciation. Balancing these competing, if not somewhat antagonistic, principles, was not an easy task. I think it is fair to say that other trial judges might have come down with a different sentence. However, deference means yielding to the sentence imposed by the trial judge where the balancing engaged in by the trial judge does not reflect error in principle or result in a manifestly unreasonable sentence. In our view, the trial judge’s balancing in this case does not suffer from either of those deficiencies. We would not interfere.”
Defence counsel says that the instant case should be looked at in light of the Whalen and May decision and that the court should consider a lesser penalty. Defence counsel points to the youth of Mr. Moradi, the fact that he was under the influence of an older co-accused, Mr. Harrison, born in 1985 and that Mr. Moradi has expressed remorse. Defence counsel concedes that M. Moradi is not on as good as footing as the two offenders in the Whalen and May decision, but nevertheless he should be at the very low end of the penitentiary penalty. Defence counsel also points out that the actual physical acts of violence and intimidation involved in the home invasion in this case were substantially less than what occurred in the Nelson and Wright decisions and that should have some impact upon the calculation of the appropriate penalty. In the late lamented joint submission, defence counsel had argued that a term of 44 months less the then presentence custody of eight months for a net of 36 months, that is to say a three year penitentiary term, would be the appropriate penalty. However without the joint submission, the defence now submits that the proper penalty of incarceration should be 36 months less the time served on a 1:1.5 basis. This would result in a net penalty of 24 months or two years. Counsel argues that it should be 24 months so that Mr. Moradi can serve his sentence in a penitentiary where he may be the beneficiary of more programming.
The defence submissions and the submissions of Crown counsel are all premised on the presentence custody as of 3 July 2012. Clearly the math changes with the decision been made on 31 July 2012. Dealing with the question of presentence custody, defence counsel makes the argument that the court should give 1:1.5 enhanced credit for the presentence custody and for that purpose he relies upon Section 719(3.1) of the Criminal Code. This is an argument which is based upon the submission that the circumstances of his presentence custody justify a 1:1.5 ratio being used. Counsel relies upon the R. v. Sabatine, 2012 ONCJ 310, 2012 O.J. No. 2258. In the Sabatine decision, Justice LeRoy with reference to certain aspects of the time period Mr. Sabatine spent in custody granted the 1:1.5 ratio. However the case is distinguished for a very simple reason. Mr. Sabatine testified as to his circumstances of incarceration and he was cross-examined on his testimony and the veracity of his statements concerning the conditions at the Elgin-Middlesex Detention Centre and his good behavior went unchallenged by the Crown. See paragraph 18. In this case, I only have the submissions made by counsel about lock-downs and sleeping arrangements and other arguably difficult circumstances in which Mr. Moradi has spent his presentence custody. There is no evidence before me. For this court to make a decision related to Section 719(3.1) I would have to be able to find that the circumstances justify the enhanced credit and I have no evidence setting out what those circumstances are. Therefore I decline to exercise my discretion under Section 719(3.1) to provide Mr. Moradi with enhanced credit.
In this case it is necessary to take into consideration the young age of Mr. Moradi, the entry of the guilty plea, his expressions of remorse as set out in his letters to the court and to the Schell family and the nature of the events themselves, which although horrifying, were not extreme and lasted in the order of approximately ten minutes.
Nonetheless there are many aggravating features. These include the statutory principles set out in Section 348.1, which is clearly made out in that the offender was at best reckless as to whether the dwelling house was occupied, although the facts would suggest that he well knew that somebody would be present. There is also the use of the weapons, the application of the pepper spray, the kicking in of the bedroom door, and the threatening gestures towards Kendra Schell and the violence rendered to Kenneth Schell. It also should be noted that the offenders – the invaders were well prepared and this was not a random act inspired by a momentary act of stupidity. They had acquired and used masks, they had plastic cuffs, they used disposable gloves, and they had changes of clothing available to them. This clearly was premeditated and absolutely intended. A further aggravating factor is that Mr. Moradi was on probation and breached his probation order by possessing weapons when he is prohibited from doing so. And as a further aggravating matter and of great consequence is the fact that Mr. Moradi is prohibited from having in his possession prohibited weapons pursuant to Section 109 of the Criminal Code and this in my view is a serious breach of that court order.
The overarching principles dealing with sentencing in home invasion cases are set out in paragraphs 13, 14 and 15 of the Wright decision. And in particular in paragraph 14, the concerns are expressed most substantively: “As this court also noted in S.(J). supra, [R. v. S(J.)(2006), 2006 22101 (ON CA), 210 C.C.C.(3d)296(Ont.C.A.).]at para. 34, home invasion offences are particularly troubling “because they represent a violation of the sanctity of the home and of the sense of security people feel when in their homes – highly cherished values in our society – and because they are frequently perpetrated against vulnerable individuals.” They must therefore be dealt with sternly by the courts. This concern was eloquently captured by Trafford J. in R. v. Soares, [1996]O.J.No.5488(S.C.J.)at para. 286: “the sanctity of one’s home is of fundamental importance in a free and democratic society. It is constitutionally recognized in our country. Everyone must not only be, but feel, secure in their residence. A society that tolerates significant criminal intrusions into the privacy of one’s home is a society that forces its citizens to resort to self-help to protect themselves against such wrongs. Absent effective responses from the judiciary, the alternative is for citizens to arm themselves in anticipation of a need to defend themselves against such criminal activity. A society like that is not ours today, has not been ours in the past, and will not be ours in the future. The obligation of the court is to give proper recognition to the sanctity of the home, to protect all citizens against such intrusions, and thereby preserve the public’s confidence in the administration of justice.”
At paragraph 24 of that decision, it speaks about how a nuanced approach to sentencing must be employed in home invasion cases. The objectives of protection of the public, general deterrence and denunciation should be given priority, although the offender’s rehabilitation and other factors pertaining to sentencing must also be taken into account.
The case law that has been referenced by the Crown clearly supports her position that six to eight years is the appropriate mid-range penalty for home invasion. However the Wright decision speaks about how it is important to be very careful when dealing with these types of matters on the basis of a range of imprisonment, as the particulars can be very different and cases can properly be as low as four to five years or as high as 11 to 13 years. The Wright decision directs sentencing judges to carefully examine the circumstances of the particular case and the nature and quality of the acts performed and the impact upon the victims.
Nevertheless the Wright decision stands for the principle that the dominant sentencing concerns are general and specific deterrence, protection of the public and denunciation. These principles are not negated in Whalen & May, but rather those principles have to be balanced against potential rehabilitation.
In this case, the proper penalty is one which emphasizes protection of the public and denunciation of the wrongful act. The harm done to the victims in terms of their psychological well being is immense. In particular the young persons in the family have had their ordinary sense of security in their home violently and dramatically disturbed. Where can they feel safe if not in their own home? There will be psychological repercussions down the road for these people and this court has to properly denounce the harm caused in part by Mr. Moradi. The Court takes into consideration Mr. Moradi’s young age and appreciates that his character is not yet fully formed. The Court also takes into consideration his dysfunctional childhood and the lack of proper role modeling. Nevertheless, Mr. Moradi is an independent actor. There is nothing in the materials that I have received that suggests that he operates with any disabilities. He simply has to make better decisions about how to conduct himself and he has to understand that the decisions he does make sometimes have irreparable consequences.
Section 718.1 of the Criminal Code directs sentencing judges to ensure that the sentence is proportionate to the gravity of the offence and the degree of responsibility of the offender. In that regard, although Mr. Moradi is a relatively young man and perhaps was under the influence of an older individual, nevertheless he is responsible for his actions and was a full participant in the home invasion. The offence is grave and the penalty must be proportionate to the gravity of that offence.
The factors in mitigation are the guilty plea, the expression of remorse, albeit late and perhaps not sincere, the age of Mr. Moradi, and his difficult childhood.
In this case there is no positive indication that Mr. Moradi will be amenable to rehabilitation. His statement that he has learned his lesson and will be a changed man is a hopeful statement, but it falls short of a specific strategy with respect to rehabilitation. The presentence report gives no suggestion of insight or real understanding of what he has done and how it has impacted on the lives of the victims. His letters to the court and to the victims are self serving and late.
The factors in aggravation are overwhelming, starting with the use of firearms or imitations, the use of specific violence, the application of the pepper spray, the kicking in of the door, the employment of masks and other devices that could be potentially used to imprison people, Section 348.1 of the Criminal Code, and the breach of his probation order and Section 109 Order.
After balancing all of these circumstances, this court is of the view that the proper global penalty is a period of incarceration of sixty months less the pre-sentence custody on one for one basis. The pre-sentence custody as at today’s date is 276 days. That is the equivalent of 9 months in presentence custody. The proper sentence is therefore 51 months in the penitentiary after allowing for the 9 months presentence custody. This sentence is lower than what other cases might attract, but that is a function of the young age of Mr. Moradi.
In terms of apportionment, count number five, which is the firearms offence under section 85(2)(a) of the Criminal Code attracts a minimum penalty of one year or 12 months that must be consecutive to any other sentence. Therefore count number one will have attributed to it 39 months jail. Count number five will be one year or 12 months in jail consecutive to count number one. Count number two will be 12 months in jail concurrent. Count number seven and nine will each attract periods of incarceration for 6 months concurrent.
The presentence custody will be charged against count number one.
There will be ancillary orders to go as well. Count number one, count number five and count number seven will all attract a Section 109 firearms prohibition order for life.
Next there will be a primary DNA order with respect to count number one and there will be secondary DNA orders with respect to counts number two and seven.
Finally, under count number five and seven, there will be a Section 491 forfeiture order with reference to the Ekol 9 mm flare gun.
The Victim Fine surcharge is waived in light of the incarceration.
Form 2
CERTIFICATE OF TRANSCRIPT (SUBSECTION 5 (2))
Evidence Act
I,
Deborah Alcorn
(Name of Authorized Person)
certify that this document is a true and accurate transcript of the recording of
R. v. Kristopher Moradi
in the
Ontario Court of Justice
(Name of Case)
(Name of Court)
held at
One Courthouse Square, Goderich, On
(Court Address)
taken from Recording
1411_1_CR#2_20120731_084139
, which has been certified in Form 1.
August 24, 2012
(Date)
(Signature of Authorized Person(s))
Deborah Alcorn
Transcript Ordered: ............................. July 31, 2012
Transcript Completed: ..........................August 24, 2012
Ordering Party Notified: .......................August 24, 2012