ONTARIO

SUPERIOR COURT OF JUSTICE

COURT FILE NO.: CR-10-087-00
DATE: 20120124

B E T W E E N:

HER MAJESTY THE QUEEN

M.J. Martin, for the Crown

Crown

• and -

RAYMOND RYERSON KING

C. Conlan, for the Accused

Accused

HEARD: November 9, 2012

REASONS FOR JUDGMENT ON SENTENCE

Daley J.

Table of Contents

Overview . 1
The Facts . 1
The Offender 2
Impact on the Victim .. 8
Legal Parameters . 9
Position of the Crown and Defence . 14
Analysis . 15
Probation . 22

Overview

[ 1 ] The offender is a 24-year-old Aboriginal male.

[ 2 ] Following charges resulting from events that occurred on November 3, 2009, at the City of Owen Sound, the offender was tried with respect to five counts, and in accordance with my reasons released on March 25, 2011, he was found guilty on two counts namely, the offence of break and enter with the intent to commit robbery contrary to s. 348 (1) (b) of the Criminal Code of Canada (" Criminal Code "), and of the offence of unlawful confinement contrary to s. 279 (2) of the Criminal Code .

The Facts

[ 3 ] The offender, along with his co-accused, Gilbert Lecuyer, ("Lecuyer”) was charged with respect to a home invasion. Lecuyer pled guilty to the offences of break and enter with intent to commit robbery, unlawful confinement and having his face covered with the intent to commit an indictable offence.

[ 4 ] On the evening of November 3, 2009 the offender and Lecuyer, by way of a ruse, gained entry to an apartment occupied by Robert Lipka and Linda Lipka, with the intent to commit robbery and while doing so unlawfully confined the victims.

[ 5 ] It was alleged in two of the counts in the indictment that the offender had used a handgun, in the course of this home invasion. For the reasons expressed in my decision, the charges with respect to those counts were dismissed.

[ 6 ] After gaining entry to the victim's apartment, the offender and Lecuyer proceeded to search the apartment for prescription medicine, namely OxyContin, and in the course of their search they confined the victims and ransacked their apartment.

[ 7 ] The offender did not testify at trial, however, his statement to the police was admitted in evidence. During the police interview, the offender provided a letter of apology to Linda Lipka, dated November 27, 2009 which is referenced at paragraph 51 in my reasons for judgment.

[ 8 ] Having found no drugs, the offender and Lecuyer fled the apartment.

The Offender

[ 9 ] In addition to the evidence available from the trial, the informational record relating to the circumstances of the offender was made up of,

(a) a pre-sentence report dated June 3, 2011 (Ex. 1);

(b) a Gladue report dated November 8, 2011 prepared by Jillian Collins, a Gladue caseworker associated with Aboriginal Legal Services of Toronto (Ex.2); and

(c) the Offender's Criminal Record (Ex.3).

[ 10 ] The offender is an Ojibway status Indian and is registered with the Wausauksing Ojibway First Nation.

[ 11 ] The offender grew up as an only child but is actually one of nine children of his biological father. He has had no contact with his biological father since birth and was adopted by his step-father who was involved in the offender's life from approximately age 4 until age 10. Both the offender's father and step-father are non-Aboriginal.

[ 12 ] The offender's step-father was reportedly physically and emotionally abusive; however, the offender indicated that he did not wish to use this as an excuse for his own conduct.

[ 13 ] The offender's mother is Aboriginal and originally from the Wausauksing Ojibway Reserve near Parry Sound. The offender's maternal grandparents both resided on Ojibway Reserves.

[ 14 ] The offender's mother reported that he had never lived on a Reserve. Her own upbringing was characterized by alcoholism and abuse.

[ 15 ] The offender's mother reported having a difficult childhood which involved physical and sexual abuse by her father. She left the Reserve at age 11.

[ 16 ] At age 19 she became pregnant with the offender and had only a brief relationship with his father. When he was approximately 3 or 4 years old she entered into another relationship, however, the offender reported that this was a violent relationship.

[ 17 ] The pre-sentence report indicates that the offender has led a transient lifestyle since an early age, starting at approximately 12 years where he left his mother and hitchhiked throughout south-western Ontario. He has never been married and has no children.

[ 18 ] The offender was diagnosed with ADHD at age 9 and took medication for this condition until approximately age 16. He was in and out of school. He first dropped out of school in grade 10 and returned to complete his high school in Wiarton at age 18.

[ 19 ] The offender reported that he considered himself a "loser" while in school and that he was beaten up. The offender's stepfather Greg Webber indicated that the offender suffered from low self-esteem.

[ 20 ] The offender reported that on dropping out of high school he hitchhiked to various cities including Toronto, London, Sarnia and Windsor. While in Sarnia he became more acquainted with members of the Aboriginal community. Although the offender did not grow up on a Reserve, he did have exposure to his Aboriginal background through his uncle David King.

[ 21 ] Throughout his youth, the offender was in custody from time to time. While residing in Sarnia he began experimenting with drugs including crystal meth, LSD, marijuana and ecstasy.

[ 22 ] The offender’s mother notes that he engaged in abuse of alcohol and drugs as a youth and the offender indicated to the investigating probation officer that alcohol was a feature of his condition at the time he committed prior offences.

[ 23 ] According to the author of the Gladue report, the offender became involved with the law while he was located in Sarnia. As a youth he was admitted to the Bluewater Youth Center in Goderich and following his release, he resided with his mother and stepfather for approximately a year, during which time he re-enrolled in high school. Following a further brief stay in Sarnia, he returned to reside with his mother and complete high school at approximately age 18.

[ 24 ] Upon resuming high school the offender reported that he was not comfortable with his Aboriginal peers, as he believed that they viewed him as an "apple,” a term used by some members of the Aboriginal community to describe other Aboriginal persons who are no less Aboriginal but who have adopted both traditional and mainstream principles into their belief systems and daily living.

[ 25 ] The offender also reported being involved in fights with non-Aboriginal youth and not being comfortable with his Aboriginal youth peers.

[ 26 ] He has a very limited employment history and has been supported primarily through Ontario Works over the past three years.

[ 27 ] The offender acknowledged his long criminal record, commencing as a youth in 2003 as set out in Exhibit 3 and in the pre-sentence report.

[ 28 ] His adult criminal record commenced in Sarnia in October 2006 at which time he was convicted of attempt theft and was sentenced to time served followed by 12 months probation. He was subsequently convicted of theft under $5,000.00 at Owen Sound, fined, and given a further probationary period of 12 months.

[ 29 ] In 2007, the offender was convicted of failing to comply with a probationary order and of failing to comply with a recognizance at Owen Sound. Further, in that year he was convicted of assault and failing to comply with a probationary order in Sarnia.

[ 30 ] On November 26, 2008 the offender was convicted of robbery at Owen Sound and was given a suspended sentence followed by 12 months probation. He was subsequently convicted at Walkerton on February 25, 2009 of theft under $5,000.00 and of disobeying a lawful order. Following a 30 day custodial sentence, he was placed on 12 months probation.

[ 31 ] The offender was subject to the probationary order at the time of the offences giving rise to his present appearance before the court.

[ 32 ] According to the author of the Gladue report, the offender did not report any health issues other than to indicate a history of depression and suicide attempts. He advised the author of the report that he contemplated taking his life while in grade 8, as a result of being bullied by his peers. He also reported that he overdosed on prescription medication and at age 17 attempted to shoot himself.

[ 33 ] His most recent attempt at suicide occurred in 2010 while residing with his surety when he tried to hang himself, fortunately, the surety intervened.

[ 34 ] While currently he does not report experiencing any suicidal ideations, he reports that he could benefit from counselling for symptoms of depression and he has agreed to participate in counselling at a Canadian Mental Health Association facility.

[ 35 ] As to his present circumstances, the offender advised the author of the Gladue report that he has not had any drug or alcohol issues since 2009 and he does not feel he requires a long-term residential drug or alcohol treatment program, however, he agrees that he would attend addiction counselling as a preventative measure for possible relapse.

[ 36 ] The offender has also indicated an interest in participating in counselling and rehabilitation programs to address substance abuse and personal life issues, following his release from custody.

[ 37 ] The author of the Gladue report recommends that, in the event a custodial sentence is ordered, the offender take part in the Turning Full Circle Program offered at the Thunder Bay Correctional Center. This is an Aboriginal-specific drug and alcohol addiction program.

Impact on the Victim

[ 38 ] It is clear, from her evidence at trial, that Linda Lipka found this home invasion to be a most terrifying experience. In his submissions on behalf of the offender, his counsel readily acknowledged that the offender's conduct involving Linda Lipka was violent and most serious.

Legal Parameters

[ 39 ] In addition to the general purpose and principles of sentencing as enunciated in s. 718 of the Criminal Code , s. 718.2 provides other sentencing principles that must be taken into account and reads as follows:

Other sentencing principles

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,

(i) evidence that the offence was motivated by bias, prejudice or hate based on race, national or ethnic origin, language, colour, religion, sex, age, mental or physical disability, sexual orientation, or any other similar factor,

(ii) evidence that the offender, in committing the offence, abused the offender’s spouse or common-law partner,

(ii.1) evidence that the offender, in committing the offence, abused a person under the age of eighteen years,

(iii) evidence that the offender, in committing the offence, abused a position of trust or authority in relation to the victim,

(iv) evidence that the offence was committed for the benefit of, at the direction of or in association with a criminal organization, or

(v) evidence that the offence was a terrorism offence

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;

(d) an offender should not be deprived of liberty, if less restrictive sanctions may be appropriate in the circumstances; and

(e) all available sanctions other than imprisonment that are reasonable in the circumstances should be considered for all offenders, with particular attention to the circumstances of aboriginal offenders.

[The remainder of the judgment continues exactly as in the source text.]

Daley J.

Released: January 24, 2012