Court Information

Court File No.: Central East - Newmarket 15-08555

Date: 2016-02-26

Ontario Court of Justice

Parties

Between:

Her Majesty the Queen

— And —

Jessie Guerra

Before: Justice P.N. Bourque

Counsel:

• Kevin Stewart, for the Crown
• Ariel Herscovitch, for the defendant, Jessie Guerra

Heard: In Writing

Reasons for Sentencing

Released on February 26, 2016

Overview

[1] The defendant and 4 other persons was charged with a series of offences which arose out of a home invasion on February 18, 2014. A preliminary hearing was commenced and evidence was heard by me (including the evidence of the victims, the Bensons). Before the completion of the preliminary hearing, the defendant plead guilty to three offences namely:

(i) February 18, 2014 robbery 344(1)(b);

(ii) February 18, 2014 aggravated assault upon Stanley Benson, contrary to section 268 of the Code;

(iii) February 18, 2014 intent to commit robbery had faces masked, contrary to section 351(2) of the Code.

[2] Stanley and Kathleen Benson had just completed their dinner on February 18, 2014, at their rented home at 103 Belvedere Street in Richmond Hill, Ontario. Kathleen went to answer a knock at the door at 8:40 p.m. when 5 men, dressed in black with balaclavas and gloves, burst into the home. The first person tasered her, and one of the assailants held her to the ground while the others moved into the house. What resulted was 10 minutes of terror for Stanley and Kathleen with men shouting for them to get into a safe that they did not have to retrieve sums of money that they also did not have.

[3] Kathleen, as I said, was held to the ground and she could not see what was happening but she could hear that violence was being done to her husband. At one point, Stanley heard one of the assailants calling for a gun, although no gun was actually seen, nor recovered by the police. Stanley was in extreme pain and eventually feigned unconsciousness.

[4] Stanley suffered a broken ankle and other injuries, including cuts and abrasions. He was hospitalized and an open reduction was performed on his ankle and required hardware insertion to stabilize the ankle. He also suffered a collapsed lung. He required emergency resuscitation in the hospital.

[5] Kathleen suffered shock and bruising and the Taser attack was painful.

[6] I presided over the preliminary hearing and listened to Mr. and Mrs. Benson, who gave their evidence in a quiet and dignified manner. The fact that they spoke without any rancour or distress does not lead me to believe that this was something they had gotten over. I take notice of the fact that such a harrowing experience cannot ever be erased from your mind and they will carry the scars of this evening for the rest of their lives.

[7] I have also had the benefit of reviewing their Victim Impact Statement and while they don't appear to have any lasting physical injuries, they have been severely traumatized by these events.

[8] I also have the victim impact statement of their neighbor Enza Gertley who has been traumatized as well because it was obvious that it was their home that was the target of assailants, who made a mistake as to which home they entered.

[9] The defendant in this case left a calling card at the scene in the form of a bracelet which fell off his wrist and was left in the kitchen. His DNA was on the bracelet. There was also cell phone evidence and it clearly implicated him. The Crown's case against him was a strong one. With regard to the facts accepted by the defendant, there was no distinction between the roles of the parties, although defence asserted on sentencing that the other evidence I heard at the preliminary hearing would perhaps suggest one of the other persons took the leading role in the injury to Stanley Benson. I do not think I can give a lot of weight to that submission as he was admittedly a willing party to this act of violence where injury and pain were clearly to be used as necessary to achieve their goals.

The Defendant

Criminal Record

[10] As disclosed in the pre-sentence report, the defendant is 23 years of age (21 at the time of the offence). He has a criminal record which consists of the following:

(a) December 10, 2009 – Youth Court – Robbery x 2 - 3 months deferred custody and supervision order and 12 month probation - Concurrent on both charges;

(b) December 16, 2009 – Youth Court – Fail to comply with recognizance – 9 months' probation

Pre-Sentence Report

[11] He was raised alternatively by his father and his mother and then with his mother and step-father. He probably looked most to his step-father for guidance and professes to have been greatly affected by his death.

[12] He has a history of drug and alcohol problems and states that around the time of this offence was using "oxy" on a daily basis and "snorting 40 mg. tablets".

[13] He did not finish high school but professes that he wishes to complete his high school at some time in the future.

[14] He has not been employed for any significant periods of time but stated in his pre-sentence report that he believes he has a job waiting for him at a lumber company when he is finally released. A letter was filed from his counsel confirming his employment.

[15] He has a girlfriend and was at the time of these offences living with her and her child.

Defendant Documents

[16] Filed on behalf of the defendant were several letters from his friends and family attesting to his good character. I accept them as genuine statements from these family members.

[17] A letter was filed (as noted above) from a prospective employer.

[18] Also filed was a letter from the addiction counsellor at the correction centre. He has been provided some materials and has worked with the counsellors.

Pre-Trial Custody

[19] The defendant has been in custody on these charges since his arrest on October 9, 2014. He has spent a total of 561 days in pre-trial custody and giving credit at 1.5 to one he has 842 days (28 months or 2 years and 4 months) of pre-trial custody to be deducted from his sentence today. The defence seeks a further mitigation of sentence as a result of the conditions at the Central East Detention Centre and I will discuss it below.

Crown Position

[20] The Crown seeks a period of custody on all charges of a total of 8 years less the pre-trial custody of 2 years and 4 months.

Defence Position

[21] The Defence seeks a period of custody on all charges of a total of 4 years and 4 months less pre-trial custody of 2 years and 4 months.

[22] These positions are wide apart.

The Law

[23] For the offence of robbery, the maximum period of imprisonment is life.

[24] For the offence of aggravated assault, the maximum sentence is imprisonment for a period of up to 14 years.

[25] For the offence of intent to commit and indictable offence when the face is masked is liable to a period of imprisonment of up to 10 years.

[26] There are no minimum sentences for any of these offences.

[27] In arriving at an appropriate sentence for these offences I must take into account the following principals as contained in the criminal code which reads as follows:

718. The fundamental purpose of sentencing is to protect society and 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 and the harm done to victims or to the community that is caused by 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 or to the community.

718.1 A sentence must be proportionate to the gravity of the offence and the degree of responsibility of the offender.

718.2 A court that imposes a sentence shall also take into consideration the following principles:

(a) a sentence should be increased or reduced to account for any relevant aggravating or mitigating circumstances relating to the offence or the offender, and, without limiting the generality of the foregoing,

(iii.1) evidence that the offence had a significant impact on the victim, considering their age and other personal circumstances, including their health and financial situation,

shall be deemed to be aggravating circumstances;

(b) a sentence should be similar to sentences imposed on similar offenders for similar offences committed in similar circumstances;

(c) where consecutive sentences are imposed, the combined sentence should not be unduly long or harsh;

[28] These offences were committed as part of a "home invasion". As such they are connected in time and space and thus it is appropriate to consider and apply the "totality principle" to these offences.

[29] The range for home invasions is four to five years at the low end, and up to 11 to 13 years at the high end. (R. v. Wright and R. v. Mann, 2010 ONCA 342).

[30] This range was affirmed by the Court of Appeal on May 22, 2015 in R. v. Brown 2015 ONCA 361. Although I agree that ranges of sentence do not constitute any sort of mandatory minimum, I must consider these guidelines in coming to a fit sentence for this offender and this crime.

[31] The defence points out that the defendant is a young man, and but for the three offences as a young offender, would in all other respects be a "youthful first offender" and thus would be subject to special considerations and the application of the principals of deterrence and denunciation would be secondary. In R. v. Borde, the Court of Appeal asserted that a young offender facing his first adult prison sentence for a serious offence should "rarely be determined solely by the objectives of denunciation and general deterrence".

[32] In Brown, the court was dealing with a youthful first offender. It reconciled these considerations in the following manner:

[4] By contrast, this case involves the sentencing of a youthful first-time offender for an extremely serious offense for which a lengthy penitentiary term is warranted. The issue is what factors should govern the determination of the length of imprisonment imposed.

[5] In our view, while individual deterrence and rehabilitation are the primary objectives in sentencing a first offender, the importance and weight of other factors increase with the seriousness of the crime. This approach respects the fundamental principle of sentencing stated in s. 718.2 of the Criminal Code: "a sentence must be proportionate to the gravity of the offence and the degree of responsibility of the offender".

[7] General deterrence and denunciation had to be weighed heavily in sentencing this serious violent crime. However, it was an error to say these factors had become "the primary consideration". The primary objectives in sentencing the youthful first time offender remained individual deterrence and rehabilitation. In balancing the factors, the sentencing judge still had to impose the shortest term of imprisonment that was proportionate to the crime and the responsibility of the offender, given his young age.

[33] In the Brown case, the defendant was sentenced to a total sentence of 7 years in the case of a horrendous home invasion which included an aggravated assault and robbery with a firearm. The further consecutive sentence of 2 years for the possession of the firearm was reduced to a current sentence.

[34] While the facts of our case are not exactly the same, and while there was no firearm, this matter did involve an aggravated assault upon Stanley Benson, an assault upon his wife Kathleen, with a taser, with further threats of violence. In its totality, and the level of violence and terror inflicted upon these innocent people in their home, it is difficult not to be guided by the Brown decision.

[35] I must also consider that the record in this matter does include two counts of robbery. Those offences were so serious that the presiding Judge imposed a deferred sentence.

[36] The defendant provided evidence as to the some of the issues at the Central East Detention Centre. The information provided was as of April 18, 2016. (Exhibits 1A and 1B). At that point, the defendant had spent some 566 days in pre-trial custody at the Central East Detention Centre. Of that time, the Unit (where the defendant was kept) was locked down on 190 occasions for less than 6 hours. On 36 occasions, the unit was locked down for 6 hours or more. The total lockdown time was 1013 hours which is the equivalent of 127 days. The defendant was triple bunked for a total of 6 days. When the lockdown is for an entire day (less than 36 times) there is no normal 20 minute period in the exercise yard, and there may be no access to visits, phones, or showers.

[37] In R. v. Tulloch 2014 ONSC 6120, Hill J. was of the opinion that periods of lockdown and double bunking in the remand facilities "are simply a reality of remand facilities". While the court was of the view that it could not exceed the credit of 1.5 to 1 as mandated in the Code, it could and "sentencing courts may mitigate sentence in instances of State misconduct, including abusively oppressive treatment. Certainly, systemic departure from the international convention, as apparently exists here, respecting the triple-bunking detention, is deserving of recognition as having special mitigatory effect...and such recognition will be assessed." I think it would be fair in these circumstances to follow Justice Hill's advice. I will not assign a specific deduction of sentence but will take it into account in the overall sentence imposed.

Conclusion

[38] The defendant was a willing participant in a horrendous home invasion which injured, terrorized and permanently changed the lives of two innocent people. They had every right to believe that they were safe from such terror in their home in this country.

[39] The defendant's motivation can only be described as a mercenary one, he did it for the money. At the time he participated in these offences, he would have had no sympathy for lives of Stanley and Kathleen Benson. I accept that he now has expressed remorse for his actions and its affect upon the Bensons.

[40] I accept his plea of guilty (while not at an early stage) at least before trial, and thus is in itself a sign of remorse. He spoke to me in court today and expressed his remorse and I accept it at face value. I must say that his plea of guilty is probably the most mitigating factor that I can consider, even though he did not change his plea until part-way through the preliminary hearing and in the face of a strong Crown case.

[41] I accept that he is a young man, and am mindful that he is surely capable of rehabilitation, taking into account his history and the supports he is getting from his family.

[42] I accept that he has spent 561 days in pre-trial custody and in addition to the credit of 1.5 to one, I will take into account as a mitigating factor, the many lockdowns and crowded conditions at the detention centre.

[43] I must also apply the law as it pertains to these offences, and while there are no mandatory minimums (either at statute or common law) I must be aware that the extreme seriousness of these offences, calls for real sanctions to facilitate his rehabilitation, to deter him from committing further offences, and to also deter others and express our denunciation for these offences.

[44] Therefore, he will be incarcerated, based on the following:

Offence	Sentence
Robbery	5 years
Aggravated Assault	1 year
Masking	1 year

Signed: "Justice P.N. Bourque"

Released: February 26, 2016