ONTARIO
SUPERIOR COURT OF JUSTICE
COURT FILE NO.: JJ 66/12
DATE: 20130109
BETWEEN:
HER MAJESTY THE QUEEN
– and –
SYED JAFFARY
Ms. E. Pecorella for the Crown
D. Sarikaya for Mr. Jaffary
HEARD: August 17, 2012
REASONS FOR SENTENCE
MURRAY J.
[1] The offender before the Court, Mr. Syed Jaffray, has entered a plea of guilty to three counts of breaking and entering a dwelling house and committing therein the offence of theft, contrary to section 348 (1) (b) of the Criminal Code of Canada, one count of possession of stolen property of a value not exceeding $5000 contrary to section 354(1) of the Criminal Code of Canada, and one count of public mischief contrary to section 140(2) of the Criminal Code of Canada.
The Offences
[2] On the 23rd day of April, 2011 at the City of Guelph, the offender with others did break and enter a dwelling house situated at 60 Hazelwood Dr. in Guelph, Ontario and committed the offence of theft. When police arrived at the scene, they observed that the door had been forced open and the home had been ransacked. Damage was done to the premises.
[3] On 23 April 2011 at approximately 5:45 p.m. the offender and two others attended a residence at 1209 Mowat Lane. in the Town of Milton. The parties forced the front door of the residence and entered and once inside stole a number of items and left the home. On being apprehended that day, a search of a vehicle occupied by the offender resulted in the police finding stolen property linked to the residential break and enter that had taken place earlier in the City of Guelph, Ontario.
[4] On April 11, 2012 after Mr. Jaffray had been charged with the above noted offences and while bound by the terms of a recognizance, together with others broke into a house located at 1735 Ennismore Crescent in the City of London, Ontario. At the time of the break-in, the house was occupied by its owner who was asleep at the time. The owner of the house heard the doorbell ring several times but did not answer. Immediately after hearing the doorbell ring, the owner heard a loud thud coming from the area of the first floor and noises could be heard by him coming from inside the residence. The owner fled the residence through a window and attended at a neighbour's residence to contact police to report the break-in. Property stolen from the residence at 1735 Ennismore Crescent was found in Mr. Jaffray's possession. When initially apprehended shortly after the break-in, Mr. Jaffray gave the police false information with respect to where he had been, why he was visiting London and identified himself falsely as Syed Hassan. This conduct resulted in his being charged with the offence of public mischief contrary to section 140 (2) of the Criminal Code of Canada.
[5] On June 29, 2012 Mr. Jaffray was convicted of failure to comply with the house arrest provisions of a recognizance which led to his conviction for breach and probation for a period of 12 months. The recognizance resulted from the 2 earlier charges now before the court.
The Personal Circumstances of the Offender
[6] Mr. Jaffray was born on February 6, 1988 in Pakistan. He had a happy childhood. Mr. Jaffray's family moved to Canada in 2008 to be with their father who had settled in Toronto in 2002. The family is described as being close. Unfortunately, Mr. Jaffray's father died in 2009. Mr. Jaffray has been responsible for helping to support his mother. According to the pre-sentence report provided to the Court, he has a good relationship with his family, including those who currently reside in Toronto.
[7] Mr. Jaffray has obtained some high school credits in Canada. He no longer attends school but has obtained both part-time and full-time employment at entry-level positions. He has had regular employment since October 2012 as a delivery driver for a restaurant. He intends to upgrade his educational qualifications in the future.
[8] Mr. Jaffray has an established relationship with Aneela Akhtar and together they have a three-year-old daughter.
[9] According to the presentence report, Mr. Jaffray acknowledges responsibility for his actions. He has expressed remorse and a desire to make amends. He states that the reason he engaged in the criminal activity outlined above is that he succumbed to the pressure of needing money at a time when he was unemployed. Both Mr. Jaffray's mother and his sister, who provided information to the court and to the probation officer, are of the view that Mr. Jaffray was negatively influenced by peers.
[10] Prior to the commission of these offences, Mr. Jaffray had no criminal record. His family is supportive. His mother and his sister strongly believe that his conduct was out of character and that he will not again engage in criminal activity.
[11] He has a common law spouse and a child who are dependent on him and who need his emotional and financial support.
The Position of the Parties
[12] The Crown seeks a sentence of between 9 and 12 months with credit for time served being 38 days to be followed by a period of probation of three years.
[13] The offender submits that a suspended sentence is appropriate in the circumstances of this case.
Analysis
[14] The offences are serious. It has often been acknowledged that breaking and entering represents a violation of the sanctity of the home and of the sense of security people feel when in their homes both of which are highly cherished values in our society. An aggravating factor relating to one of the break and enters is that the homeowner was in his home at the time that this offender and others broke into his residence in London, Ontario causing him to flee.
[15] Section 348.1 directs a court sentencing an adult person convicted of unlawful confinement, robbery, extortion, or break and enter in relation to a dwelling house to consider as an aggravating circumstance the fact that the dwelling-house was occupied at the time of the commission of the offence and that the person in committing the offence knew that or was reckless as to whether the dwelling-house was occupied. As noted, the owner of 1735 Ennismore Crescent in London, Ontario was at home at the time of the break-in.
[16] I also consider it an aggravating factor - although a less significant one - that while bound by terms of a recognizance, Mr. Jaffray violated the house arrest provision and was convicted for such violation. Furthermore, the third break and enter committed by Mr. Jaffray in London, Ontario was a violation of the terms of his recognizance and of the terms of probation which resulted from his breach of recognizance. In short, Mr. Jaffray has shown himself on a number of occasions to be capable of disregarding his obligations to comply with the law notwithstanding his undertaking to the court to obey the law and be of good behaviour.
[17] Mr. Jaffray’s counsel points to the sentences imposed by the court relating to others involved in some of the same criminal activity. I am advised that Mr. Javad was sentenced in this court to three months for criminal charges relating to two break and enters in Milton, Ontario and one charge of possession under $5000. Mr. Junaid Mubashar, who was involved in one break and enter in Milton, Ontario, was sentenced in the Provincial Court and given a suspended sentence.
[18] It is clear that offenders who commit similar offences in similar circumstances should receive similar sentences (s. 718.2(b) of the Criminal Code). However, it is well established that the court does not always impose similar sentences for each co-offender. Rather, the court looks to impose similar sentences for co-offender whose participation in the offences is similar and who have similar antecedents, present circumstances and future prospects. I have no information before me relating to the nature of the participation of these other individuals in the offences for which the offender has pled guilty. Furthermore, I have no information about these two individuals and no information on what informed the sentencing decisions of this court and the Provincial Court.
Decision
[19] Given the seriousness of the offences, a sentence in the range being proposed by the Crown is appropriate and reasonable. The principles of sentencing - in particular, denunciation and deterrence - are particularly important in a case such as this. Furthermore, I am also of the view that a period of incarceration will assist in the rehabilitation of Mr. Jaffray who has up to now not shown himself to be amenable to court orders.
[20] On each offence, Mr. Jaffray is sentenced to a period of incarceration for nine months with credit given for 38 days representing time served, all to be served concurrently.
[21] Mr. Jaffray's incarceration is to be followed by probation for a period of two years on the usual terms with the following additional terms:
Mr. Jaffray is to report to his probation officer as directed by the probation officer;
Mr. Jaffray is to reside at an address approved by the probation officer;
Mr. Jaffray is to attend and actively participate in any rehabilitative counselling as directed by the probation officer and provide proof of completion to the probation officer;
Mr. Jaffray is to sign any releases necessary in order for the probation officer to ensure compliance with counselling directed by the probation officer;
Mr. Jaffray is prohibited from possessing any weapons as defined by the Criminal Code of Canada;
Mr. Jaffray is not to attend within 500 metres of the following addresses: 1209 Mowat Lane, Milton, Ontario; 412 Pettit Trail, Milton Ontario; 60 Hazelwood Dr., Guelph Ontario; 1735 Ennismore Crescent, London Ontario;
Mr. Jaffray is prohibited from communicating directly or indirectly with Ayman Aldin, Bushra Al- Samarrey or any other person as directed by the probation officer;
Mr. Jaffray shall make best efforts to find gainful employment and\or attend school.
Mr. Jaffray shall abstain from communicating directly or indirectly with Junaid Mubashar and Amir Javed. This prohibition is not intended to prohibit incidental contact with the two named individuals while attending at religious services at a mosque.
[22] An order is made authorizing the taking of bodily substances for forensic DNA analysis.
[23] All other charges withdrawn.
MURRAY J.
Released: January 9, 2013
DATE: 20130109
ONTARIO
SUPERIOR COURT OF JUSTICE
HER MAJESTY THE QUEEN
– and –
SYED JAFFARY
REASONS FOR SENTENCE
MURRAY J.
Released: January 9, 2013