Court File and Parties

Court File No.: Regional Municipality of Durham: 998 14 25014 Date: 2014-04-18 Ontario Court of Justice

Between: Her Majesty the Queen — and — Ryan Hickey

Before: Justice J. De Filippis

Heard on: April 16, 2014

Reasons for Sentence released on: April 18, 2014

Counsel:

• Ms. J. O'Connor for the Crown
• Mr. M. Jacula for the Defendant

Reasons for Sentence

De Filippis J.:

[1] The defendant pled guilty to possession of methamphetamine, possession of hydromorphine, failure to comply with a recognizance, possession stolen property (two counts), break and enter into a dwelling house, possession of a firearm with readily accessible ammunition, possession of a restricted weapon, and possession of a firearm while prohibited. I heard the facts of these crimes as well as other (property) offences that the parties agree are to be considered on sentence. The details are contained in a five page statement read onto the record by the Crown on the guilty plea.

[2] It will suffice, for the purposes of sentencing, to recount the following facts: For about three weeks in December 2013, the defendant stole items, including a wallet with identification, from several motor vehicles at various locations in Oshawa. On two occasions, he stole the vehicles themselves. This activity culminated in a two day crime spree between December 26 and 27, in which he continued to steal from vehicles and committed a residential break and enter. The defendant was in the company of his nine year old son during some of the offences. The young boy appears to have been "along for the ride" and did not take a direct role in any of the offences. During the two day crime spree the defendant was in possession of an unloaded 357 Magnum and readily accessible ammunition. The handgun was not used in the commission of the other offences. The defendant was arrested at his home and police found methamphetamine and hydromorphine in his possession. Just before being arrested, the defendant gave his son a knapsack and told him to put it in the house. Police seized it and discovered the handgun and ammunition.

[3] At the time of these offences the defendant was on probation, on bail, and subject to a weapons prohibition. As of this date, the defendant has been in custody for 73 days. To reflect the lack of remission, I consider that to be the equivalent of six months in presentence custody (i.e a credit of 1.5:1).

[4] The position of the parties reflects their appreciation of the foregoing facts as well as the personal circumstances of the defendant and the impact of his misconduct on others, as summarized below. The Crown submitted that a period of six years in jail is warranted. Defence counsel argued that a sentence of two to two and one-half years is fit and proper.

Sentencing Principles

[5] Section 718 of the Code provides as follows:

The fundamental purpose of sentencing is to contribute, along with crime prevention initiatives, to respect for the law and the maintenance of a just, peaceful and safe society by imposing just sanctions that have one or more of the following objectives:

(a) to denounce unlawful conduct;

(b) to deter the offender and other persons from committing offences;

(c) to separate offenders from society, where necessary;

(d) to assist in rehabilitating offenders;

(e) to provide reparations for harm done to victims or to the community; and

(f) to promote a sense of responsibility in offenders, and acknowledgment of the harm done to victims and to the community.

Impact on Victims

[6] The property offences undoubtedly caused great inconvenience to the people who awoke to discover that items had been taken from the motor vehicles – or that the vehicles themselves had been stolen. Residential break and enters are particularly invasive. In this case, I have the benefit of a victim impact statement. The homeowner and his family came home at 2 PM to find their home had been broken into and their television and laptop stolen. He reported that the crime ruined their Christmas celebration as they had to cancel plans to host 30 people for dinner that day. Of greater concern is the impact on his special needs son who remains fearful of intruders at the home and is in counselling. At this juncture it is appropriate to also note that since the events in question, the defendant's son has experienced problems at home and school.

Aggravating Factors

[7] That the defendant committed these offences while subject to three different court orders is a significant aggravating factor on sentencing. In addition, it is especially troubling that he exposed his young son to the crimes and briefly put him in possession of a handgun and ammunition. Such firearms charges were recently the subject of comment by the Ontario Court of Appeal in R. v. Nur, R. v. Smickle and R. v. Charles, 2013 ONCA 677, 678 and 681. In these three cases the Court concluded that both the mandatory minimum sentences violate section 12 of the Charter and are of no force or effect. The lead decision is Nur and it is authored by Justice Doherty. In that case, the defendant was convicted for being in possession of a loaded prohibited handgun in a public place, an offence under section 95(1) of the Criminal Code with a minimum sentence of three years' imprisonment. The case is significant for my purposes because Justice Doherty agreed with the trial judge that an appropriate sentence without the three-year minimum would have been between two years less one day and three years. In this regard, I note that Nur was a first offender with strong family support and promising circumstances.

Mitigating Factors

[8] The defendant had a difficult childhood because of his drunken and brutish father. Notwithstanding this, he was steadily employed and proved himself to be a good spouse and father and productive member of the community. Indeed, he was first convicted of an offence at 38 years of age. In the following four years, he can fairly be described as a "petty criminal" and his longest sentence was 60 days in jail. Then he committed the present offences. This change in lifestyle coincided with his move to Oshawa, where he associated with "bad people" and became addicted to oxycontin and "crystal meth". There is no doubt the present offences were fuelled by substance abuse. I have been advised there may also be undiagnosed mental health issues; at the very least the defendant suffers from anxiety and depression. He has expressed his willingness to seek counseling for substance abuse and mental health issues. There are other mitigating factors: I noted that the defendant became visibly upset when counsel made reference to the effect his misconduct has had on his son. He obviously regrets this. I also take into account that he pled guilty and made an emotional apology to the court. His remorse is genuine and substantial.

[9] I accept that the defendant is presently motivated to seek treatment for the underlying causes of his criminal activity. That offers a reasonable prospect that he will return to a productive life. Therefore, although the focus in this case must be on denunciation and deterrence, the total sentence should not deprive the defendant of hope of rehabilitation.

Sentence

[10] In my opinion, the right sentence is a global one of five years, less six months credit for the presentence custody. The particulars of the sentence are as follows:

• Possession of unloaded restricted firearm – three years;
• Possession of a restricted weapon while prohibited – one year, consecutive to the preceding sentence;
• Residential break and enter – six months, in addition to six months presentence custody, consecutive to the preceding sentences;
• Possession of a restricted weapon – six months, concurrent to the preceding sentences;
• Possession of methamphetamine and hydromorphine – one month each, concurrent to one another and the preceding sentences;
• Remaining property offences – six months, concurrent to one another and the preceding sentences;

[11] In addition, I issue the following ancillary orders: A weapons prohibition for life and a DNA warrant.

Released: April 18, 2014

Signed: "Justice J. De Filippis"