Court File and Parties

Court File No.: 3711-998-12-0602-01, 3711-998-12-0602-02, 3711-998-12-0602-03

Date: 2013-06-04

Ontario Court of Justice

Between:

Her Majesty the Queen

— and —

Chase Kauffeldt, Matthew Kauffeldt, and William O'Brien

Before: Justice Robert G. Selkirk

Heard on: May 6, 2013

Reasons for Judgment released on: June 4, 2013

Counsel:

• S. Syed for the Crown
• Kenneth G. Hall for the accused Chase Kauffeldt
• Joshua A. Clarke for the accused Matthew Kauffeldt
• Sean J. May for the accused William O'Brien

Judgment

SELKIRK, J.:

The Offence and Guilty Pleas

[1] Chase Kauffeldt, Matthew Kauffeldt and William O'Brien plead guilty to one count of Break, Enter and Commit assault causing bodily harm, contrary to s. 348(1)(b) of the Criminal Code.

[2] It has often been said that sentencing decisions are some of the most difficult decisions for a trial judge to make. This is especially so when otherwise good people do a bad thing, a seriously bad thing. This is such a case.

[3] I will address the circumstances of the offence; the circumstances of each offender; the principles of sentencing; the case law submitted to me and then ultimately my decision.

Circumstances of the Offence

[4] The circumstances of the offence are contained in an Agreed Statement of Facts filed as Exhibit #3, 4 and 5. In brief what occurred was that in the first week of May 2012, the complainant, Jason Pereira, beat John Ferguson with a stick over a drug debt. Jason Pereira left John Ferguson for dead in a field.

[5] On May 19, 2012 Chase Kauffeldt came up with the idea to pay Jason Pereira back for beating up John Ferguson.

[6] On May 20, 2012 Chase, his brother Matthew and William O'Brien attended at Jason Pereira's residence. They had been drinking but were not intoxicated.

[7] Matthew Kauffeldt drove there in a pick-up truck, Chase Kauffeldt and William O'Brien came in another truck. Jason Pereira was alone at the residence.

[8] The three men began banging on the doors and windows. Chase Kauffeldt tried to break the glass in the French doors using brass knuckles. He was unsuccessful. They then broke the window on a side door in an attempt to reach the lock but were again unsuccessful.

[9] They were about to leave when Chase Kauffeldt got into his truck and backed it into the patio doors destroying them and allowing them entry into the house. Jason Pereira was on the phone with 911 and told them the police were on the way.

[10] Matthew Kauffeldt pinned Jason Pereira to the floor and Chase Kauffeldt and William O'Brien kicked and punched him several times.

[11] They then left.

[12] Jason Pereira suffered injuries to the back of his head, received a cut to his left ear and bit a piece of his lips out.

[13] When the police arrived Jason Pereira refused medical attention.

[14] The police discovered a marijuana grow-op and paraphernalia consistent with Jason Pereira's drug dealing. They also seized a stun gun and a variety of rifles and ammunition for a hand gun.

[15] Later that day, all three offenders were arrested without incident. All three were co-operative and provided inculpatory statements.

[16] They spent six days in pre-trial custody before being released on bail conditions. There have been no breaches. Neither of the Kauffeldts have a criminal record. O'Brien has a minor, unrelated and somewhat dated record.

[17] It is clear that all are parties to the entire offence although it must be noted that it was Chase Kauffeldt's idea and it was Chase Kauffeldt who backed his truck into the patio doors. He had also armed himself with brass knuckles.

Pre-Sentence Reports and Offender Circumstances

[18] Pre-Sentence Reports were prepared and filed for all three offenders following their pleas of guilty.

Chase Kauffeldt

[19] Chase Kauffeldt is twenty-three years of age. He is the younger step brother of Matthew. Chase reports a normal healthy childhood. The family is close and supportive.

[20] He is employed full time with a construction company and is considered an excellent employee.

[21] He is in a stable common law relationship with a three month old daughter. He and his partner are happy together.

[22] There are no alcohol, drug or psychological issues.

[23] The Pre-Sentence Report says, "The subject presented as being transparent, authentic and genuine in his responses and appears to have gained some valuable insight into his criminal conduct. He appears to recognise the role alcohol played in his decision making process."

[24] He has accepted full responsibility and is genuinely remorseful. Everyone agrees that this conduct is out of character for Chase.

Matthew Kauffeldt

[25] Matthew Kauffeldt is thirty years old. His biological mother left the family when he was eight. When he was twelve his father re-married and although these events caused Matthew some difficulties eventually close bonds were established by all within the family.

[26] He is employed full time in the family restaurant working long hours.

[27] He is in a stable common law relationship.

[28] He is a volunteer firefighter.

[29] There are no alcohol, drug or psychological issues in his life.

[30] The author of the Pre-Sentence Report describes Matthew as polite, co-operative, honest and forthcoming. Sources describe Matthew as jovial, easy going, helpful and caring. His conduct was described as completely out of character. He appears to appreciate the seriousness of the offence and takes full responsibility for his behaviour. He is remorseful.

William O'Brien

[31] William O'Brien is of native background but has specifically requested that neither a Gladue report be prepared or that Gladue sentencing principles be applied to him as he believes his background is no different than anyone else's and that the Gladue factors are not relevant to his situation.

[32] He is twenty-eight years old. He is in a ten year relationship with three children. They have a happy family relationship. His parents and sisters and extended family live in the area.

[33] It is said that Mr. O'Brien's life revolves almost exclusively around the well-being of his family.

[34] He is employed, full time, with a landscaping company. He is considered a valued and trusted employee.

[35] Like the Kauffeldts, alcohol, drug or psychological issues are not present at this time although alcohol was an issue when he was younger.

[36] He accepts responsibility for his role. He also is remorseful. He has written a letter of apology.

Character References

[37] Character references were filed on behalf of all three offenders. I will not refer to them individually but that is not to say I do not take them into account. I thank counsel for gathering this helpful material and I thank the people who wrote the letters for their time and effort. Needless to say they paint quite a different picture of these young men than their conduct on May 20, 2012 disclosed. They are universally described as kind, gentle, family oriented and a credit to the community. Their conduct is said to be out of character, a "one-off" from which they learned valuable lessons.

Positions on Sentence

[38] There is not a joint position on sentence.

Crown's Position

[39] The Crown takes the position that a five year jail sentence is required. The incident is described as a home invasion. S.348.1 of the Criminal Code specifically makes this an aggravating factor. A person's home was violated. Significant fear and upset were caused. This requires that a strong message be sent of denunciation and deterrence.

[40] It is argued that it is an aggravating circumstance that several attempts to get inside were made through doors and windows and then a pick-up truck was used to break through the patio doors.

[41] It was also pointed out that even though the offenders knew the police had been called and were on their way that they persisted in their violence.

[42] With respect to Chase, it is said he was the most involved, it was his friend who had been assaulted by Jason Pereira, it was his idea, he used his truck to get in and used brass knuckles in the assault.

[43] With respect to Matthew, it is submitted that Ferguson was also his friend, that he hit the complainant and held him down while the two others hit him.

[44] With respect to O'Brien, Ferguson was not his friend so there is no even misguided motive for his participation. The facts disclose that he punched Pereira twice in the face.

[45] The Crown also seeks a weapon prohibition and a DNA order. I will indicate at this point that these ancillary orders are not contested by the defence.

Defence Position

[46] The defence's position is one of twelve to eighteen months jail plus probation. This is based on their co-operation with the police; their pleas of guilty; their genuine remorse; their family involvement and support; their good work histories and their strict obedience to their bail conditions. They point out that there were no significant injuries and that medical attention was not sought. It is submitted that this conduct is out of character and never to be repeated.

THE LAW

Sentencing Principles

[47] The principles of sentencing are set out in s.718 to s.718.2 of the Criminal Code. S.718 declares the fundamental purposes of sentencing. These include denunciation and deterrence and to promote a sense of responsibility in offenders. S.718.1 requires that sentences be proportionate to the gravity of the offence and the degree of responsibility of the offender. S.718.2 sets out statutory aggravating factors although none apply to this case. It indicates a sentence imposed should be similar to sentences imposed on similar offenders. It states that an offender should not be jailed if less restrictive remedies may be appropriate and that all other sanctions other than jail should be considered if reasonable in the circumstances.

[48] There are also a number of common law principles that I will speak to after addressing the case law submitted to me.

Case Law Analysis

R. v. Wright

[49] The Crown has cited the following cases. The first one was R. v. Wright, 2006 83 O.R. (3d) 427, Ontario Court of Appeal. In that case five men armed with firearms and wearing disguises invaded the residence of a small businessman for the purpose of robbing him. Once inside, they gathered his family and children in the living room. Guns were held to the complainant's head, threats were made, items and cash were stolen. The accused had prior record for thefts. The Court sentenced him to eight years and his appeal was dismissed.

[50] The trial judge stated, with approval by the Ontario Court of Appeal that he must give priority to denunciation and deterrence in spite of the accused's genuine remorse and his full acceptance of responsibility for this serious offence.

[51] At paragraphs 14 and 15 the Court writes:

[14] As this court also noted in S. (J)., supra, 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 it 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 enterprises. 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 to thereby preserve the public's confidence in the administration of justice.

[15] For these reasons, a lengthy penitentiary term is fully warranted upon conviction for a home invasion offence: R v. Nelson, [2001] O.J. No. 2585, 147 O.A.C. 358 (C.A.), at para. 15. This appeal raises the issue of the appropriate "range" of that penitentiary term, in the context of the fitness of the sentence imposed by the trial judge.

[52] The Court then goes on to cite a number of home invasion cases where sentences from four to fourteen years have been imposed. The constant circumstances present in all of those cases are the targeting of innocent and vulnerable victims, the use of firearms and the motive of robbery or sexual assault with serious injuries being incurred.

[53] At paragraph 24 the Court writes:

[24] In my view, however, "home invasion" cases call for a particularly nuanced approach to sentencing. They require a careful examination of the circumstances of the particular case in question, of the nature and severity of the criminal acts perpetrated in the course of the home invasion and of the situation of the individual offender. Whether a case falls within the existing guidelines or range – or, indeed, whether it may be one of those exceptional cases that falls outside the range and results in a moving of the yardsticks – will depend upon the results of such an examination. I agree with the British Columbia Court of Appeal in C.( A.J.) (at para. 29), however, that in cases of this nature the objectives of protection of the public, general deterrence and denunciation should be given priority, although of course the prospects of the offender's rehabilitation and the other factors pertaining to sentencing must also be considered. Certainly, a stiff penitentiary sentence is generally called for.

R. v. Walsh

[54] In R. v. Walsh, 2011 ONCA 325, [2011] O.J. No. 1835, the Ontario Court of Appeal held that the appropriate sentence should have been one of eight years but did not disturb the eighteen month sentence imposed due to the exceptional efforts at rehabilitation and that further incarceration would be counterproductive.

[55] The circumstances in Walsh were that the accused broke into the home of a person he believed was in possession of drugs stolen from a pharmacy. He plead guilty to robbery, assault bodily harm and a breach of undertaking. He was a drug dealer and had served four different penitentiary sentences.

[56] At paragraph 11, the Court writes:

We agree with the Crown that the sentence imposed is outside the normal range of five years and up for a home invasion robbery. (My emphasis added).

R. v. J.S.

[57] In R. v. J.S., [2006] O.J. No. 2654, the Ontario Court of Appeal provides a definition of home invasion at paragraphs 32 to 34 which reads:

[32] Consistent with the theme outlined in para. 30 above, there appears to be general agreement in these authorities that the main features of home invasion include breaking and entering a dwelling place for purposes of committing a theft or robbery, knowing that (or being reckless as to whether) the home is being occupied, and using or threatening to use violence. The presence of weapons is often a factor, as is the confinement of the occupants of the home in some fashion.

[33] For the offence to qualify as a home invasion, I would add to the foregoing that the entry to the dwelling need not be only for the purposes of robbery or theft – or result in those offences being committed. The crimes committed within the dwelling may include other offences involving violence against the person, as, for example, assault, sexual assault, or unlawful confinement.

[34] There is also widespread agreement in the authorities that such offences are very serious 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. As Nordheimer J. observed, in R. v. H. (P.), supra, at para. 73:

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 own homes. Whatever may happen in the outside world, people have an innate feeling that their homes are their one inviolate sanctuary.

[58] At paragraphs 36 and 37 the Court writes:

[36] The label "home invasion" is elastic and can cover a broad range of offences. Judges have warned against generalizing across all home invasions when determining an appropriate sentence. One size does not fit all. See, for example, R. v. Pakoo, supra, Kroft J.A. at paras. 55-56; R. v. Bernier, 2003 BCCA 134, 177 C.C.C. (3d) 137 (B.C.C.A.) Southin J.A. at paras. 37-38; R. v. C. (A.J.), 2004 BCCA 268, 186 C.C.C. (3d) 227 (B.C.C.A.) Finch C.J.B.C. at para. 1.

[37] In Pakoo, Justice Kroft advised:

The use of the general description ("home invasion") alone is of no concern. The problem arises because once the label has been affixed, there is an assumption on the part of judges and others, that conviction will usually be followed by a sentence confined to [a certain range].

He concluded by expressing (at para. 65) his

desire to assure that the sentence which we have imposed be seen as one based on cases with similar facts and the sentencing guidelines set forth in the Code, not simply on the "home invasion" label or the constraints that often come with it.

[59] This case does not fall within that definition to the extent that as the break and enter was not for the purpose of theft or robbery nor was there any weapons used, setting aside the brass knuckles, nor was there any confinement of the occupant, nor was the victim innocent or vulnerable.

[60] This case does not involve a home invasion as in the Ontario Court of Appeal decision of Wright or the cases discussed in that decision wherein the range of sentence identified is upward from four years. I do not consider those principles applicable in this case except to say that break and enter and assault are very serious offences. The sanctity of the home is an important value which must be protected. Violence is never acceptable and must be denounced. But just because a home was invaded does not make it a home invasion as discussed in Wright although s.348.1 does apply.

Other Crown Cases

[61] R. v. Dunn, [2002] O.J. No. 864 was cited only for the principle that "violence occurring while under the influence of alcohol is not usually a mitigating factor."

[62] R. v. Kanthasamy et al, 2007 ONCA 90, 2007, 84 O.R. (3d), 664, Ontario Court of Appeal, was cited for the proposition that the principle that youthful offenders should not receive jail sentences or the shortest possible custodial sentence is of attenuated weight when the offence involves serious violence. There two accused randomly picked a victim and attacked him with machetes causing serious life altering physical and psychological injuries. The appeal of a seven year sentence was dismissed although found to be in the upper range.

[63] The last case cited by the Crown was R. v. Ipeelee, 2012 SCC 13, [2012] S.C.J. No. 13, for its discussion of Gladue principles, however, at Mr. O'Brien's request those principles are not being applied in this case and therefore no discussions of Ipeelee is needed.

Defence Cases

[64] The defence cited a number of cases setting out a range of dispositions from six months to 30 months.

[65] In R. v. Ryan, 2004 Carswell Ont. 6149, Ratushny J. sentenced a young man who while high on drugs broke into a residence with the intention to rob the occupants, tasered an occupant and then fled. He had no prior record, was remorseful and took several rehabilitation steps. He received a two year less a day conditional sentence and probation. I appreciate that subsequent amendments to the Criminal Code remove a conditional sentence as an option but the case is helpful nonetheless as it demonstrates the range of sentences that have been imposed as well as the importance of a nuanced approach to each particular case.

[66] In R. v. Perdomopena, [2011] Carswell Ont. 15990, OCJ, a thirty-seven year old male with no prior record plead guilty to aggravated assault and break and enter. The offender broke into his estranged spouse's residence and finding a man there, ultimately ended up stabbing him several times in the shoulder, the abdomen, thigh and hands. The victim spent seventeen days in hospital and was left with permanent injuries. There was a positive Pre-Sentence Report. The accused spent 190 days in pre-trial custody and 22 months on strict bail conditions. He received a 71 day intermittent sentence plus probation.

Principles of Deterrence

[67] In R. v. Costa, [1996] O.J. No. 299, Ontario Court of Justice, General Division, Watt J. provides a helpful view on what is meant by deterrence at paragraph 40 which reads:

General deterrence does not occur in a vacuum. It is satisfied when the sentence imposed is sufficient to deter others in circumstances similar to those of the accused from similar conduct. At bottom, persons are deterred. They are deterred from conduct. They will be deterred from such conduct, if at all, by a sentence that, to them, will signal that the cost exceeds the benefit. The persons to be deterred are individuals of previously or otherwise unblemished character. The conduct from which they are to be discouraged is self-help in the apprehension of offenders.

[68] Thus the persons to be deterred by the disposition in this case are young men, with no prior records, of otherwise good character with promising futures who break into a home of a violent drug dealing criminal and impose minor injuries in response to the complainant beating and leaving for dead in a field a friend of theirs. It is to deter self-help and vigilantism. Again, I will indicate that this is not similar to the target for deterrence as in Wright or the cases cited therein.

Principle of Restraint

[69] The principle of restraint must also be accommodated. These principles are discussed in Priest, [1996] O.J. No. 3369 (Ontario Court of Appeal) wrote the following at paragraphs 17 and 18:

17. The primary objectives in sentencing a first offender are individual deterrence and rehabilitation. Except for very serious offences and offences involving violence, this court has held that these objectives are not only paramount but best achieved by either a suspended sentence and probation or a very short term of imprisonment followed by a term of probation. In R. v. Stein (1974), 15 C.C.C. (2d) 376 (O. C.A.) at page 377, Martin J.A. made it clear that in the case of a first offender, the court should explore all other dispositions before imposing a custodial sentence.

18. As the Stein case shows, it has been an important principle of sentencing in this province that the sentence should constitute the minimum necessary intervention that is adequate in the particular circumstances. This principle implies that trial judges consider community-based dispositions first and impose more serious forms of punishment only when necessary. These principles have now been codified in the recently proclaimed sections 718 and 718.2 of the Criminal Code. Section 718 (c) instructs that separation of offenders from society is an appropriate objective of sentencing "where necessary". Section 718.2 (d) directs that an offender should not be deprived of liberty "if less restrictive sanctions may be appropriate in the circumstances".

[70] I appreciate the Court specifically excludes serious offences and violent offences as being suitable for non-custodial sentences. However, having said that, it does not mean that the fact that the offenders are either youthful or first offenders is to be ignored. Rehabilitation continues to be important and this includes preserving as much as possible their promising futures.

[71] So while denunciation and deterrence are paramount, where dealing with youthful or first offenders' rehabilitation is not far behind. Restraint, as set out in s.718.2 of the Criminal Code, must also be applied.

Nuanced Approach to Sentencing

[72] In R. v. McCowan, (2010), 2010 MBCA 45, 255 C.C.C. (3d), 123, the Manitoba Court of Appeal in dealing with a home invasion type case where s.348.1 of the Criminal Code applied wrote at paragraph 11:

I believe it can be misleading to apply the range developed for "home invasion robberies" too rigidly without taking careful account of the nuances in the facts of each case. Sentencing ranges are useful in promoting consistency and parity because they provide guidelines to sentencing judges for the imposition of similar penalties for similar offences of a similar nature involving similar offenders. See R. v. M. (T.E.), [1997] 1 S.C.R. 948 (S.C.C.). But they are nothing more than guidelines and are certainly not conclusive of the appropriate sentence in any given case. The Supreme Court of Canada recently confirmed this basic principle in R. v. Nasogaluak, 2010 SCC 6, 251 C.C.C. (3d) 293 (S.C.C.), when it repeated that a judge can order a sentence outside of a guideline range so long as it is in accordance with the principles and objectives of sentencing. Thus, a sentence falling outside the regular range of appropriate sentences is not necessarily unfit. See also, R. v. Sinclair, 2009 MBCA 91, 245 Man.R. (2d) 237 (Man. C.A.) at para. 6.

[73] This passage reinforces how individualized each disposition must be. Ultimately the goal is the protection of the community through judicious use of the principles of sentencing which must be balanced on a case by case basis.

Aggravating and Mitigating Factors

[74] In this case the aggravating factors are:

1. s.348.1 Criminal Code – break into a home knowing it is occupied;
2. use of violence although causing only minor and non-permanent injuries;
3. to continue with their assault, albeit for only a few minutes, knowing the police had been called;
4. the self-help or vigilantism as their motive.

[75] The mitigating circumstances are:

1. the brevity of the incident and leaving voluntarily;
2. co-operated with the police and immediately provided inculpatory statements;
3. plea of guilty, no trial or preliminary dates set;
4. full acceptance of responsibility for their conduct;
5. genuine remorse;
6. positive Pre-Sentence Report and reference letters which demonstrate pro-social values and family oriented lifestyles;
7. out of character behaviour with no reason to believe any further criminal acts will occur;
8. supportive, although not condoning, families;
9. full time employment which provides the financial support for their families;
10. ages and lack of criminal record (or unrelated and minor for O'Brien);
11. strict compliance with their bail conditions as evidence of their willingness to obey Court orders and their respect for the law.

Sentencing Analysis

[76] As a serious offence (break and enter) and a violent offence (assault causing bodily harm) denunciation and deterrence are primary consideration. This must be balanced by the principles of restraint especially when dealing with first offenders.

[77] Specific deterrence is not a factor. They have learned their lesson and the community does not need protection from them.

[78] Rehabilitation will not be encouraged by a lengthy jail sentence in these circumstances. Indeed to place these offenders in the harsh milieu of a prison may well be detrimental to the best interest of the community by possibly distorting or reducing their positive pro-social values.

[79] Rehabilitation can be achieved through probation conditions.

[80] The fact that deterrence is achieved by other factors must be considered. There is the stigma in the community which is especially pertinent to people of previously good character. The public charging, plea and sentencing has significant deterrent effects on generally pro-social people.

[81] Community service work also has a deterrent effect. It is not just a condition of a probation order. Community Service Orders were brought in to stand in lieu of jail sentences. Community Service Orders can properly be characterized as punishment. It is punishment that is spread over months as a constant reminder as to why the offender is picking up garbage or cleaning out church basements.

[82] In R. v. Carbone, [2012] O.J. 176, OCJ, Cole J. discusses two important aspects of sentencing. The first is the use of Community Service Order in lieu of jail and the second is how the principle of restraint is ensconced in Canadian Law. At paragraphs 24 and 25, he writes:

[24] In Robinson I cited extensively from English case law, now nearly 30 years old, which has approved the notion of imposing community service as an equivalent to imprisonment – if not replacing it completely. I went on to quote the important case of R. v. C.A.M. (1996), 46 C.R. (4th) 269, where Lamer C.J.C. wrote for the court:

The relevance of both retribution and denunciation as goals of sentencing underscores that our criminal justice system is not simply a vast system of negative penalties designed to prevent objectively harmful conduct by increasing the cost of the offender must bear in committing an enumerated offence. Our criminal law is also a system of values. A sentence which expresses denunciation is simply the means by which these values are communicated. In short, in addition to attaching negative consequences to undesirable behaviour, judicial sentences should also be imposed in a manner which positively instils the basic set of communal values shared by all Canadians as expressed in the Criminal Code. (para. 81; emphasis added)

[25] I then went on to point out that C.A.M. was decided before the 1996 revisions to Canada's adult sentencing regime. In my judgment two elements of those changes are important for the case at bar. First, it is surely important that the title of Part XXIII was renamed; "Punishment" was replaced with "Sentencing". Second, as I have previously indicated, "reparation" (more commonly known as restorative justice) was expressly listed as a "Purpose" of sentencing. Though obviously different from the case at bar in both factual and legislative contexts, I consider it noteworthy that in both R. v. Gladue, [1999] 1 S.C.R. 688 and R. v. Proulx 2000 SCC 5, [2000] 1 S.C.R. 61, the Supreme Court of Canada reminded sentencing judges that restorative/reparative justice objectives are to be given considerable prominence in determining a fit sentence.

Impact on Families

[83] To a limited extent, I must also take into account the effect of a lengthy jail sentence on their families.

[84] Mr. O'Brien has three children. His wife works at two jobs. She needs his help. The children need their father.

[85] Chase Kauffeldt has a four month old daughter who has special needs and visits CHEO on a regular basis. She needs her father, not only for the important purpose of bonding but also for the practical needs of dealing with a disabled new born.

[86] Matthew Kauffeldt has no children but he runs the family restaurant. He works twelve to thirteen hours per day, often six days a week. There is no evidence that the family business will collapse without Matthew, but obviously its survival will be severely tested.

[87] These considerations although less determinative than the need for deterrence must be seen as part of the bigger picture.

Conclusion on Sentencing Range

[88] In light of the above principles I find, with all due respect to counsel, that their proposed range of sentences, in the particular circumstances of this case are too high, excessive and not in the best interest of either the offenders or the community. Justice that is harsh is not in the best interests of either the administration of justice or the public interest generally.

[89] Counsel has not provided me, nor have I found any, cases where the facts or offenders are similar. The self-help motive in response to a vicious beating by the complainant on a friend while worthy of condemnation does not have the same depth of blameworthiness or criminality as some other home invasions. While the victim is not on trial, it cannot be ignored that he lives in a criminal lifestyle and indeed is a perpetrator of violence on others. In that harsh world, although not acceptable to us, payback is to be expected. There was no victim impact statement filed.

Comparison to R. v. Joshua Cameron

[90] Another case, heard locally and decided by me on May 10, 2013 is R. v. Joshua Cameron (Information No.3711-998-13-0002). After trial I convicted Mr. Cameron of Break and Enter with Intent and Assault. The facts were that Mr. Cameron believed, rightly or wrongly I don't know, that the complainant's partner had taken some money from him. He spent several days banging on their door and making threats while demanding the return of his money. Then one night, knowing that the complaint, his partner and their three year-old child were at home, Mr. Cameron smashed open their door and barged in. When met by the complainant in the kitchen he punched him in the face. There was a scuffle and eventually Mr. Cameron was pushed outside. There were no serious injuries to the complainant.

[91] The above facts make the argument for the application of s. 348.1 of the Criminal Code in that the accused knew it was a dwelling house, knew the occupants were at home including a three year old and used violence upon breaking and entering. The Crown's position on sentence was 90 days jail less pre-trial custody of 21 days. I imposed the sentence requested by the Crown. I should point out that Mr. Cameron was a youthful first offender as an adult but one who had a substantial record as a youth. He was unemployed, not in school and addicted to drugs. There were none of the mitigating circumstances found in the case at bar including the positive character of the offenders here.

[92] I do not find the facts in this case to be so much more serious than in the Cameron case. In fact, when one considers that the victim in Cameron was innocent of any wrong-doing as compared to the victim in this case then arguably the Cameron case was more serious and Cameron's behaviour was more blameworthy than the offenders in this case. In any event there is no way to reconcile for such a gross disparity in the Crown's position in roughly similar cases.

[93] Applying s.718.2 (b) which requires similar sentences for similar offences by similar offenders would result in a similar sentence for these offenders as was received by Mr. Cameron.

[94] The sentence I impose may be seen as light, or too lenient or outside of the "range". However, I believe it addresses both deterrence and rehabilitation and best serves the community.

SENTENCE

[95] I sentence each offender to ninety days in jail.

[96] If transportation is available to them they can advise me if they wish to serve it intermittently.

[97] This will be followed by two years of probation. I will hear from counsel as to the appropriate conditions. The orders will include 150 hours of CSO for Matthew Kauffeldt and William O'Brien and 200 hours of CSO for Chase Kauffeldt due to his greater involvement.

[98] There will be a weapon prohibition for 10 years.

[99] There will be an order to supply a sample for the DNA data bank.

[100] I would have preferred to impose an order of restitution but despite my raising this issue in our last Court appearance, I have not been provided with any information as to the cost of the damage and I, therefore, cannot order restitution.

The Honourable Mr. Justice Robert G. Selkirk