Court Information

Ontario Court of Justice

Date: 2018-07-19

Court File No.: Brampton 3111 998 12 1026

Parties

Between:

Her Majesty the Queen

— And —

Haldane Smithen-Davis and Jason Hamilton

Judicial Officer and Counsel

Before: Justice G.P. Renwick

Sentencing Heard: 27 June 2018

Reasons for Sentence Released: 19 July 2018

Counsel:

• E. Taylor, counsel for the Crown
• M. MacGregor, counsel for the defendant
• A. Pinnock, counsel for the defendant Jason Hamilton

Introduction

[1] After a five-day trial, I found both defendants guilty of breaking and entering into a dwelling to commit an indictable offence. The homeowners, Milorad and Sandy Vrga, and their two young children were in their home at the time of the break-in. It is agreed between the parties that the defendants broke in with the intention of committing what is commonly referred to as a home invasion.

[2] During the crime, Mr. Vrga struggled with the three intruders, which included the defendants and Mr. Ibrahim Abukar. Mr. Abukar was armed with a firearm. Mr. Vrga shot and killed Mr. Abukar and the two defendants fled the residence. It is unclear on all of the evidence whether Mr. Abukar was killed by his own firearm or the unregistered stolen firearm possessed by Mr. Vrga which was found in the home by the police as well as almost $200,000 in cash.

[3] This crime carries a maximum penalty of life imprisonment. The prosecutor seeks a ten year penitentiary sentence and ancillary orders (deoxyribonucleic acid sampling ("DNA") and a weapons prohibition) for both offenders.

[4] Counsel for Mr. Smithen-Davis suggested a sentence in the range of 4-6 years, while counsel for Mr. Hamilton seeks a sentence in the range of 4-7 years imprisonment.

[5] I find that a penitentiary sentence of 9 years is appropriate for each offender. I will set out my reasons for this sentence using the following headings:

• Sentencing Principles
• The Circumstances of the Offence
• Impact upon the Victims
• The Background of Each Offender
• Analysis

Principles of Sentencing

[6] The fundamental purpose of sentencing as expressed in section 718 of the Criminal Code is to contribute to respect for the law, the maintenance of a just, peaceful and safe society by imposing just sanctions that have one or more of the objectives of denunciation, deterring the offender and other persons from committing offences, separating offenders from society, where necessary, assisting in rehabilitating offenders, providing reparation for harm done to victims or to the community, and promoting a sense of responsibility in offenders and acknowledgment of the harm done to victims and to the community.

[7] The fundamental principle of sentencing is that the punishment should be proportionate to the gravity of the offence and the degree of responsibility of the offender. The punishment should fit the crime. There is no single fit sentence for any particular offence. The relevance and relative importance of each of these objectives will vary according to the nature of the crime and the circumstances of the offender.

[8] In R. v. Hamilton, Doherty J.A. of the Ontario Court of Appeal stated that:

The "gravity of the offence" refers to the seriousness of the offence in a generic sense as reflected by the potential penalty imposed by Parliament and any specific features of the commission of the crime which may tend to increase or decrease the harm or risk of harm to the community occasioned by the offence…

The "degree of responsibility of the offender" refers to the offender's culpability as reflected in the essential substantive elements of the offence - especially the fault component - and any specific aspects of the offender's conduct or background that tend to increase or decrease the offender's personal responsibility for the crime.

[9] The Court quoted Rosenberg J.A. who had previously described the proportionality requirement in R. v. Priest:

The principle of proportionality is rooted in notions of fairness and justice. For the sentencing court to do justice to the particular offender, the sentence imposed must reflect the seriousness of the offence, the degree of culpability of the offender, and the harm occasioned by the offence. The court must have regard to the aggravating and mitigating factors in the particular case. Careful adherence to the proportionality principle ensures that this offender is not unjustly dealt with for the sake of the common good.

[10] Section 718.1 of the Code ensures that proportionality is the fundamental principle of sentencing. However, proportionality is not the sole principle to be considered. A sentence should be similar to sentences imposed on similar offenders for similar offences committed in similar circumstances. As well, subsection 718.2(a)(iii.1) requires that a sentence should be increased if it is established as an aggravating circumstance that the offence had a significant impact upon the victims.

[11] As a sentencing tool, imprisonment is to be used only as a last resort when required by the circumstances of the crime and the background of the perpetrator. The principle of restraint requires that the shortest period of incarceration that will meet the penological aims in a given case is the appropriate length for a prison sentence. In this case, all parties agree that a penitentiary sentence is appropriate.

[12] Our Supreme Court has instructed that section 718 requires a sentencing judge to consider more than simply denunciation, deterrence, and rehabilitation. The court must also consider the restorative goals of repairing the harms suffered by individual victims and by the community as a whole, promoting a sense of responsibility and an acknowledgment of the harm caused on the part of the offender, and attempting to rehabilitate or heal the offender. Although the rehabilitation of the defendants is a much reduced consideration in the overall calculus of an appropriate sentence in this case, it is still a factor I must consider.

[13] Before I can apply the principles of sentencing it is necessary to consider the underlying circumstances of the offence, the impact upon the Vrga family, and the background of these defendants.

Circumstances of the Offence

[14] It will be helpful to recall the factual findings I made at paragraph 9 of my Reasons for Judgment, released on 02 March 2018. They are:

i. The three men who entered the Vrga home broke in through the side door;

ii. The gloves on the step at the side door were used by one of the two men who broke into the Vrga home, but not Mr. Abukar, who was wearing gloves when he died;

iii. The white canvass shoes were worn by one of the two men who broke into the Vrga home, but not Mr. Abukar, who was wearing boots when he died;

iv. The black boots found by the side door were recognized by one or more of the residents of the Vrga home and were not attributed to either of the three intruders;

v. Mr. Abukar wore an outfit resembling a police uniform, but it was not a police uniform;

vi. The BlackBerry ("BB") found on Mr. Abukar contains messages sent and received by him leading up to the break-in; and

vii. Mr. Abukar used the user/profile name "IB" in his BlackBerry Messenger ("BBM") text messages.

In addition to these facts, I ultimately concluded that:

viii. Mr. Smithen-Davis used the Blackberry represented by the username "J….";

ix. Mr. Hamilton used the Blackberry represented by the username "Logix 3"; and

x. All three intruders entered the Vrga home in possession of a weapon. It is an agreed upon fact that Mr. Abukar was "armed with a firearm" and Mr. Vrga "believes that one of them had a handgun as well and that the other may have had a knife or a box cutter" (Agreed Statement of Fact ("ASF") exhibit 1A at paras. 1, 2, and 10). These facts are accepted as proven. On the basis of these accepted facts, I am satisfied beyond a reasonable doubt that there were multiple weapons brought by the three intruders to the Vrga home. Further, I conclude beyond a reasonable doubt that all three men were aware of and agreed to the joint possession of at least one firearm and other weapons to threaten and/or possibly subdue any occupants of the residence during the home invasion.

[15] Photographs taken by the police shortly after the break-in (exhibit 2) establish that two motor vehicles had been parked in the driveway of the home. There is an overwhelming inference that the defendants knew that the home was occupied when they broke into it. I am satisfied beyond a reasonable doubt that the defendants knew that the home was or was likely to be occupied when they entered it based upon the following:

i. The home itself suggests it is an occupied residence; plants on the upper front balcony and garbage bins along the side of the house all indicate that the house was being used as a residence;

ii. Given the time of day when the break-in occurred the residents of the home would likely be present, albeit possibly asleep;

iii. The driver(s) of the two motor vehicles parked on the driveway was (were) likely home; and

iv. Multiple weapons were brought by the three perpetrators to the break-in.

[16] Both the 9-1-1 call (exhibit 5A and 5B) and the photographs of the shattered patio door establish that multiple gunshots were fired during the encounter and struggle between Mr. Vrga and the three men. The photographs reveal that Mr. Abukar apparently died in the family room on a rug that appears to have been displaced (suggesting a possible area where a struggle occurred), inside and well beyond the threshold of the residence.

[17] On the basis of the text messages recovered on the deceased's cellular telephone, I am satisfied beyond a reasonable doubt that this break-in was well planned between the defendants and the deceased several days in advance of the crime. The men planned which day, their transportation, and what the deceased was to wear before the break-in.

[18] Again, from the text communications between the three perpetrators of the break-in, I am satisfied beyond a reasonable doubt that Mr. Smithen-Davis took a leadership role in terms of acting as a go-between for Mr. Abukar and Mr. Hamilton in the days leading up to and on the night in question, organizing when the break-in would happen, the transportation to the home and where to meet, and suggesting that Mr. Abukar should bring his police uniform.

[19] Based on what was in the home (almost $200,000 in cash and an unregistered, stolen firearm) I am satisfied beyond a reasonable doubt that the Vrga residence was not a random target. The slight connection between Mr. Hamilton and the Vrga residence (see paragraph 80 of the Reasons for Judgment) also supports this finding. This reinforces my belief that the defendants jointly along with Mr. Abukar possessed at least one firearm and possibly two, as well as an edged weapon to overcome any resistance to their planned robbery by Mr. Vrga.

Victim Impact

[20] A Victim Impact Statement ("VIS") was filed as exhibit 1 during the sentencing hearing. Initially, there was some concern on the part of the defendants given some of the opinions expressed within the VIS. The prosecutor does not rely upon the financial losses claimed in the VIS. The court gives no weight to the inappropriate invective directed at the defendants. Instead, I accept from the VIS that this event has changed the Vrga family's sense of security in their home and to some extent their behaviour and perception of our community.

[21] During submissions, there was a suggestion that Mr. Vrga may be involved in criminality (the large amount of cash and the possession of a stolen handgun support such an inference, leaving aside what can be made of his willingness and ability to use deadly force) thus, the effect of the break-in is mitigated or reduced. I squarely reject this notion for several reasons.

[22] First, the court has no knowledge of the criminal antecedents of Mr. Vrga or the manner in which he lives his life. Regardless, all residents in this community deserve the protection of the law and the right to feel safe in their home: see R. v. Whalen, 2011 ONCA 74.

[23] I acknowledge that Mr. Vrga does not appear to be someone with a weak constitution. At one point during the trial, without any concern for interrupting the proceedings, he walked into the courtroom in the middle of a cellular telephone conversation and continued to talk on the phone until the prosecutor sent him away. Whether or not there is any merit to the suggestion that Mr. Vrga lives a criminal lifestyle, he is a very large man with an imposing presence and a lion's confidence. Regardless, Mr. Vrga and his family can no longer live with a belief that the sanctity of their home is certain.

[24] Moreover, the VIS was not written by Mr. Vrga, but instead came from his wife, who is also the Mother of their children. Other than as indicated above, the contents of the VIS were not challenged and they factor into the sentencing process in the limited way provided for by the Code.

[25] The fact that Mr. Abukar died in front of the family hearth and the Christmas tree will likely always haunt the Vrga family, especially during the winter holidays. Fortunately, it does not appear that the Vrga children were directly impacted by the events of 07 December 2012.

[26] As the substance of the claims of psychological stress resulting from the break-in and death of Mr. Abukar was not challenged by the defendants, I accept it as proven beyond a reasonable doubt that this offence has left a significant, enduring, and indelible stain upon the consciousness of Mrs. Vrga.

[27] Although Mr. Vrga was compelled by the actions of the defendants and Mr. Abukar to respond to their threat of deadly force and that response lead to Mr. Abukar's death, Mrs. and Mr. Vrga have to live with this psychological scar indefinitely. Despite that over five years have passed since this crime, the emotions and stress caused by the horrifying events of 07 December 2012 do not appear to have significantly diminished. Consequently, I am satisfied beyond a reasonable doubt that s. 718.2(a)(iii.1) applies in all of the circumstances.

Background of the Offenders

Haldane Smithen-Davis

[28] I received a Pre-sentence Report ("PSR") for Mr. Smithen-Davis. He was 33 years old at the time of the offence. He is a British citizen with no permanent status in Canada. Mr. Smithen-Davis is married and has three young children. He is high school educated and he has a short criminal record with one related offence for trespassing at night, for which he received probation, five years prior to this offence.

[29] The PSR also indicates that the offender was subject to a Conditional Sentence Order and Probation from February 2010 until February 2013, and the offender has "four adult convictions," but the criminal record included within the PSR does not reflect this. Without knowing anything about a possible conviction in 2010, I have given this information no weight.

[30] The author of the PSR confirmed that the offender's wife of 12 years believes that Mr. Smithen-Davis is a great husband and father to their children and he is hard-working. The investigating officer believes that Mr. Smithen-Davis is intelligent and capable of success in our community. Mr. Smithen-Davis has been working part-time since February of this year as a "shop helper" at an automotive firm and he is valued at his company. Mr. Smithen-Davis is also involved part-time as a personal fitness trainer, a passion of his.

[31] Mr. Smithen-Davis has been on bail for over two years, without incident. He has expressed empathy for the Vrga family and the Abukar family without accepting responsibility for the break-in. Mr. Smithen-Davis has always attended court on time and well presented. Although I only know Mr. Smithen-Davis from watching him over the course of the trial and the sentencing process, he presents as friendly and genuine.

[32] As a result of the information before the court, I find that Mr. Smithen-Davis is capable of rehabilitation and contributing to his community. He will undoubtedly be deported to England upon his release from the penitentiary, but as this is where both he and his youngest child were born and where his entire family was living for over three years prior to his extradition to Canada, I do not find that this fact merits much consideration in the overall calculation of an appropriate sentence.

Jason Hamilton

[33] I also received a PSR for Mr. Hamilton. Mr. Hamilton was born in Canada and at the date of the offence he was 39 years old. He has an extensive criminal record (20 convictions over an 8 year period as an adult) which includes four attempted or actual break and enter convictions. There is a gap from 2000 until this offence. The longest sentence Mr. Hamilton has received is three months imprisonment.

[34] The PSR characterizes Mr. Hamilton as a good father and a positive member of his community who has always tried to give back through his music or charitable events to make amends for his past criminal conduct. Mr. Hamilton was a gifted student in elementary school and he has completed high school.

[35] Fourteen character letters were also filed on Mr. Hamilton's behalf during the sentencing hearing. I have read all of these. Unfortunately, many of the letters are generic in the sense that they do not identify that they are written to support a lower sentence. Rather, they appear to be written as if Mr. Hamilton were seeking employment and the writers support his candidacy. Nonetheless, Mr. Hamilton appears to be a genuinely caring person who is involved in making his community better, when he is not committing crimes.

[36] From having Mr. Hamilton appear before me on a weekly basis as part of a bail order until his recent arrest, I can say that Mr. Hamilton appears to have respect for the Court and the process. Mr. Hamilton also strikes me as an intelligent, mature, and sensitive human being. He too has an authenticity about him. I find that Mr. Hamilton is capable of big things and he has good prospects for rehabilitation.

Analysis

[37] The sentencing principles of denunciation and deterrence are paramount here. However, to obtain a just sentence, I must not lose sight of the possibility of rehabilitation.

[38] Sentencing is an imprecise blend of art and science. Our Supreme Court appears to have recognized this by noting, "The determination of a just and appropriate sentence is a highly individualized exercise that goes beyond a purely mathematical calculation." The gravity of the offence, the offender's degree of responsibility, the needs of the community, the impact upon the victim, and the background of the offender must all be taken into account to arrive at a fair sentencing result.

[39] No sentence can adequately put a value on the loss of life or the violation of one's sense of security in their own home. Equally true, no sentence can account for human potential or the depth of one's character. At best, the court can simply aim to balance the level of criminality and an offender's culpability with social abhorrence of crime and the community's need for protection. The governors of the sentencing process are respect for the dignity of all life, the hope for rehabilitation, and the principles of restraint, parity, and proportionality. Even though they have chosen to represent themselves as outlaws and armed burglars, Mr. Smithen-Davis and Mr. Hamilton are valuable human beings and they are worthy of a sentence which will not break their spirit or harm their prospects for rehabilitation.

[40] I have considered both the mitigating and aggravating factors in this case.

[41] The aggravating factors arise out of the offence itself. This was a planned event that was motivated by greed. The intruders wore dark clothing and possibly masks, according to Mr. Vrga. Mr. Smithen-Davis and Mr. Abukar wore gloves to avoid identification. It is unknown whether or not Mr. Hamilton also wore gloves. Weapons, including at least one and possibly two firearms were brought to a residential break-in, after midnight when the occupants, including young children, were known or likely to be present.

[42] Both defendants were aware of the high likelihood of the presence of occupants in the residence, and I am satisfied beyond a reasonable doubt that each of them were aware that they were all armed with weapons, including Mr. Abukar's firearm. Moreover, Mr. Abukar was told by Mr. Smithen-Davis to wear his fake police uniform. I find that this fact is aggravating because the costume would likely cause any occupants of the home to lower their guard or avoid active resistance. The weapons were also brought for the purpose of intimidating and overcoming resistance. Eventually, all three of the assailants struggled with the home owner with deadly consequences.

[43] Counsel for both defendants submitted that their clients would not have known that Mr. Abukar possessed a firearm, nor could they have foreseen the tragic consequences that unfolded. I reject this submission. On the evidence before the court, I accept the ASF and the evidence of Mr. Vrga that all three intruders were armed and there was possibly a second firearm and a knife in these defendants' hands. As for the submission that they could not have known that their violence would be met with violence, the slightly modified words of Sharpe J.A. in R. v. S.M. are apposite:

It would be unreasonable for a person in the [defendants'] shoes not to anticipate that pointing a [weapon] at someone and threatening to rob and [harm] that person was likely to provoke a defensive response.

[44] I find that each defendant was mature enough and experienced enough as offenders to have foreseen the possible consequences of jointly possessing a firearm. The fact that they also possessed weapons indicates that they foresaw that weapons could be used and that serious injury or death could result. I am satisfied beyond a reasonable doubt that the defendants knew the risks and deliberately participated in this dangerous criminal pursuit, consciously. This puts their culpability at the higher end for a home invasion break-in. The fact that it was a co-conspirator, instead of the homeowner, who died has no effect on their culpability. The fact that they took the risk that a firearm might be used and death might ensue is extremely aggravating because the worst possible scenario was realized.

[45] The Vrga family has suffered and continues to suffer the effects of this gross violation of the peaceful possession of their home. Save for the fact that none of the home's occupants was injured, the consequences of this offence push the defendants' culpability toward the top of the sentencing range.

[46] There are also a number of mitigating factors here. The trial minimized the involvement of the complainants, who never had to testify. The defendants made several concessions and accepted facts which limited the role of the court to determine the sufficiency and force of the circumstantial evidence. The defendants did not seek to require Ms. Vrga to attend court to be cross examined on her VIS. These are significant mitigating factors, which the prosecutor acknowledged and accepted. Indeed, the prosecutor factored this into the submission for a sentence below the upper end of the sentencing range (11-13 years) for this type of offence.

[47] The defendants and their counsel are to be commended for saving the complainants from having to testify (and for pursuing their trials efficiently, sparing judicial resources), as is the prosecutor for acknowledging the mitigating features of this case.

[48] As well, the PSR for each offender is positive. Mr. Smithen-Davis has a very small criminal record and he appears to be a caring father and husband. He does not have a lot of support in this country but he has maintained part-time employment. Given that Mr. Smithen-Davis will be deported after serving his sentence, his risk of re-offending in Canada is reduced to zero. There is a significant gap in Mr. Hamilton's criminal record until this offence (12 years) and Mr. Hamilton has done a lot of charity work and supports 8 children. Mr. Hamilton is cherished and has a lot of people who stand behind him. Given his record for this specific offence, the risk of re-offence for Mr. Hamilton is low to moderate.

[49] These men are not without redeeming qualities and from all appearances in court, they are quite likeable. Neither defendant has spent any significant period of time in prison, much less a penitentiary. They are not first offenders or hardened criminals. Both offenders were mature enough to express remorse for the loss of Mr. Abukar's life and the violation of the Vrga's home, while maintaining their innocence of this offence.

[50] For both culprits this offence represents a significant increase in their criminality and the use of violence. This offence is completely out of character for Mr. Smithen-Davis. The fact that this is an armed intrusion is out of character for Mr. Hamilton. Again, this factor supports a sentence toward the higher end of the range.

[51] I am also mindful that in the past, Mr. Smithen-Davis has never been imprisoned for more than 5 days while Mr. Hamilton's longest period of incarceration has been three months. Given that this would be the first penitentiary sentence for each offender, I must determine whether an appropriate sentence should fall at the lower end of the appropriate sentencing range as suggested by counsel for Mr. Hamilton.

[52] In my view, this submission completely neglects the heightened culpability which attaches to this offence in light of the use of one or more firearms during the commission of the offence and the consequence of Mr. Abukar's death. Although this was not an offence that involved torture, confinement, or injuries sustained by the residents, all three assailants struggled with Mr. Vrga in his home. Several gun shots were fired and the bullets went through the patio door and left the home. Fortunately, no one outside of the residence was injured. Unfortunately, inside the home a man died. In all of the circumstances of this offence, a sentence at the low end of the range (4-6 years) fails to take into account the serious, significant, and fatal outcome of this home invasion and the seasoned offenders behind it.

[53] I am prepared to give each defendant a reduction of one year from what is otherwise an appropriate sentence in this case to give effect to the first penitentiary sentence principle. By reducing the sentence by one year the court acknowledges that serving a penitentiary sentence will be a drastic consequence for Mr. Smithen-Davis and Mr. Hamilton.

Sentencing Cases

[54] In terms of the range of sentence, the parties agree that due to the myriad number of ways in which a home invasion break-in can occur, an appropriate sentence can fall somewhere between four or five years imprisonment on the low end and 11-13 years at the top of the range: see R. v. Wright. I am also aware that our highest court recently held that even where sentencing ranges are identified, they are guidelines rather than hard and fast rules.

[55] I agree that absent exceptional circumstances, none of which is claimed to exist here, the range submitted by the parties (4-13 years) is the appropriate range of sentence for the generic offence and the circumstances of the crime and the offender will drive the analysis for a just sentence in this matter.

[56] To fix this offence at the appropriate point along the continuum of sentences for home invasions the prosecution relied upon several cases: R. v. Hejazi, 2018 ONCA 435, R. v. Jervis, [2013] O.J. No. 1485 (C.A.), R. v. Mann, 2010 ONCA 342, and R. v. Wright.

[57] Mr. Hejazi committed a vicious, unplanned sexual assault during a planned home invasion. The offender received a 9-year sentence. It was unclear whether or not he had pleaded guilty, but he was seen to be at a low to moderate risk to re-offend.

[58] The offender in Jervis committed a brazen daylight home invasion, with an accomplice, and fired shots which entered a school. Fortunately, there were no injuries. The appellant had a minor criminal record. After pleading guilty, Mr. Jervis received a 9-year sentence.

[59] Mr. Mann was convicted of five offences in relation to robbing an illegal "booze can" operation in a home with a firearm. His brother was an accomplice who had pleaded guilty and received a 5-year sentence. Following a trial, Mr. Mann received a 10-year sentence for the home invasion and two years imprisonment, consecutive, for breaching a weapons prohibition.

[60] After pleading guilty to participating with four others in a violent home invasion involving handguns and disguises, Mr. Wright, who had a criminal record, was sentenced to 8 years imprisonment. Mr. Wright's co-accused received 11 and 12-year sentences, but their criminal records were "more elaborate."

[61] The Ontario Court of Appeal upheld the sentences for all of these offenders.

[62] Counsel for Mr. Smithen-Davis relied on the analysis and cases submitted by counsel for Mr. Hamilton: R. v. Alves, [2008] O.J. No. 2597 (S.C.J.), aff'd 2009 ONCA 666; R. v. J.B., 2011 ONSC 1150; R. v. Chretien, [2009] O.J. No. 2578 (S.C.J.); R. v. Hall, [2001] O.J. No. 3704 (C.A.); R. v. King, [1977] O.J. No. 756 (C.A.); R. v. Lewis, [1977] O.J. No. 225 (C.A.); R. v. Menard, [2011] O.J. No. 6678 (C.J.); R. v. Mills, [2014] O.J. No. 1568 (S.C.J.); R. v. Serre, [2009] O.J. No. 437 (C.A.); R. v. Simoes, [2012] O.J. No. 1002 (S.C.J.), aff'd 2013 ONCA 465; R. v. Tran et al., 2010 ONCA 471; and R. v. Whalen. Of these cases, only Mills, Tran et. al., and Whalen had any resemblance to the facts of this case.

[63] Mr. Mills acted as the getaway driver of a violent home invasion robbery where the complainant was unintentionally shot in the back. Mr. Mills received a 7-year sentence, while his accomplices were sentenced to imprisonment for 8.5-10 years.

[64] Ms. Dang was sentenced four years in Tran et. al., arising from her involvement in a series of four related home invasions, but unfortunately, it is unclear what role she played and whether or not she had a criminal record. It is clear that no shots were fired and nobody died from these home invasions.

[65] The Whalen case is an anomaly. It is almost identical to the facts of the matter at bar. However, the youth and rehabilitative prospects of the two offenders figured prominently in the sentences of two years (or less) for each of the two offenders. The Court of Appeal explained the decision this way:

The trial judge was also aware that a sentence range is not "fixed in stone," but is ultimately provided for the guidance of 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.

The Crown agrees that deference was owed to the sentence imposed by the trial judge. Clearly, he had a difficult task in this case. 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. The material before him provided a basis for that finding. Both respondents have also continued their progress while in custody as indicated in the material that has been placed before us. They do seem to have turned their lives around.

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.

Neither counsel for Mr. Smithen-Davis nor counsel for Mr. Hamilton suggested that the reasoning in Whalen should prevail for their clients.

[66] The facts of this case are unique, but resemble those of Jervis more than the other cases cited. However, Mr. Jervis pleaded guilty, these offenders did not. Similar to Mr. Mann who had 22 prior convictions (several of which for the same offence – armed robbery in his case), Mr. Hamilton has 20 prior adult criminal convictions, four of which are related.

[67] Based upon all of the evidence considered during the trial, I have assessed Mr. Smithen-Davis' culpability as higher than Mr. Hamilton's given his leadership role, as mentioned above. However, when I consider that Mr. Smithen-Davis has a shorter criminal record and he faces deportation, these facts attenuate his culpability such that his sentence should be the same as Mr. Hamilton's.

[68] In all of the circumstances, a 10-year penitentiary sentence is appropriate for each offender given their culpability and in light of their criminal records and backgrounds. Applying a reduction of sentence to account for the fact that this is the first penitentiary sentence for each offender, I find that a 9-year sentence would meet the needs of deterrence and denunciation, while recognizing the potential for Mr. Smithen-Davis and Mr. Hamilton to become rehabilitated.

Pre-Sentence Custody Credit

[69] Mr. Smithen-Davis has spent 19 days in pre-trial custody and 10 more days awaiting extradition in England. He was on house arrest here for 6 months before the terms of his judicial interim release order were relaxed. I am prepared to give Mr. Smithen-Davis 1.5 days credit for each day he has spent in pre-trial custody, for a total credit of 45 days. For his time on a strict bail order I will give him another 45 days credit. These credits will reduce Mr. Smithen-Davis' sentence by three months.

[70] Mr. Hamilton was arrested and released on bail in 2016. He was arrested for an alleged breach of that bail on 11 March 2018 and he spent 19 days in custody until I released him on a strict bail again. He was re-arrested in the first week of May and has spent 80 more days in pre-trial detention until this sentencing. Giving him 1.5 days credit for each day of his pre-trial custody earns him 150 days or 5 months pre-trial custody credit. Accepting that he was on a house arrest bail order for 7 months initially and another month this year, I am prepared to give him another 60 days credit toward his sentence.

Conclusion

[71] Haldane Smithen-Davis is sentenced to serve 9 years confinement in a penitentiary, less three months credited, for a remaining sentence of 8 years and 9 months imprisonment.

[72] Jason Hamilton is sentenced to serve 9 years confinement in a penitentiary, less 7 months credited, for a remaining sentence of 8 years and 5 months imprisonment.

[73] I also make the following ancillary orders.

[74] Pursuant to section 109 of the Criminal Code, Mr. Smithen-Davis will be prohibited from possessing any firearm, other than a prohibited or restricted firearm, cross-bow, restricted weapon, ammunition and explosive substance for 10 years and any prohibited or restricted firearm, prohibited weapon, prohibited device, and prohibited ammunition for life, pursuant to s. 109(2) of the Code. By virtue of his prior convictions under s. 348 and the operation of s. 109(3) of the Code, Mr. Hamilton is prohibited from possessing any firearm, cross-bow, prohibited or restricted weapon, prohibited device, ammunition, prohibited ammunition, and explosive substance for life.

[75] For the purposes of DNA sampling for inclusion in the national databank, this is a "primary designated offence." Accordingly, I am authorizing the taking of any number of samples of one or more bodily substances, including blood, that are reasonably required for the purpose of forensic DNA analysis from both offenders in conditions that are respectful of their personal dignity and health.

[76] You will each have two years following your release to pay the victim surcharge.

[77] I am indebted to all counsel for their helpful submissions.

Released: 19 July 2018

Justice G. Paul Renwick