ONTARIO
SUPERIOR COURT OF JUSTICE
COURT FILE NO.: CRIMJ(P) 1540/11
DATE: 2013-09-12
B E T W E E N
HER MAJESTY THE QUEEN
P. Maund, for the Crown
and
AJALA OSWALD
K. Schofield, for the defence
Defendant
HEARD: May 22, 2013
REASONS FOR SENTENCE
Bielby J.
Overview:
[1] On November 8, 2010, two men entered the home of Jason Morgan and committed a robbery. One of those men was the offender, Ajala Oswald.
[2] The offender was convicted on all four counts. They were:
The theft of property with violence, contrary to section 344 of the Criminal Code, R.S.C. 1985, c. C‑46.
Use of an imitation firearm, contrary to section 85(2)(a) of the Criminal Code.
The confinement of Jason Morgan without lawful authority, contrary to section 279(2) of the Criminal Code.
Assaulting Jason Morgan with the use of a weapon, contrary to section 267(a) of the Criminal Code.
The Facts:
[3] The victim, Jason Morgan, resided at 333 Meadow Blvd. in Mississauga. On the evening of November 8, 2010, two men, both with handguns entered the victim’s home. Portions of the robbers’ faces were covered.
[4] The victim was asked, “Where is your dope and your money.”
[5] The victim was held on the floor and at one point, when he tried to grab the gun in the hand of the intruder holding him down, was struck on the left side of the head, with the gun, which caused a wound that later required medical attention. The other intruder searched the house.
[6] The two robbers left with only a camcorder and a small amount of cash and, with the victim in pursuit, ran to the offender’s car and left the scene. The victim remembered enough of the license plate number to have the car linked to the offender.
[7] The offender was known by the victim and had been to the victim’s home on earlier occasions when he bought and/or smoked marijuana.
Circumstances of the Offence
[8] The offences arise from a home invasion with violence. Guns were used as were disguises. The offender and his partner had hung out with the victim previously and had enjoyed his hospitality albeit for illegal purposes.
Circumstances of the Offender
[9] The offender is 30 years old and the father of a nine year old son. At the time of the sentencing hearing, the offender’s girlfriend was seven months pregnant.
[10] The offender has a criminal record. As a young offender the offender was charged with robbery, amongst other things. He was again convicted of robbery in 2001.
[11] The offender’s last conviction was for uttering threats, in June 2007.
[12] On behalf of the offender, counsel filed a book of materials which contained letters of character on behalf of the offender. The offender is a full time sales manager for Direk Channel-Ineveilline, and has worked for them for three years. He is considered by his employer to be a hard worker and a leader.
[13] The materials include a letter from the offender’s mother asking the court not to be too hard on her son. She describes her son as a good young man and a wonderful father and uncle.
[14] A letter was received from Mr. Masters who in 2009 coached the offender’s son in soccer. Because of the offender’s enthusiasm and ability to engage players, the offender was asked to be an assistant coach.
[15] Mr. Masters describes the offender as a positive role model and requests I consider a non-custodial sentence.
[16] A letter was received from J. Fraser who is involved with a store called Spiritual Kedar. She describes the offender as having remarkable leadership skills and notes his dedication to his child and his nephews. She describes the offender as someone who stops by the store and volunteers to stock shelves or provide a helping hand.
[17] A letter was received from Tobias Marcus who it would appear works with youth and describes the offender as a mentor to youth, and a positive role model. The offender is described as a well loved and respected team leader with organizational skills that are relied upon.
[18] The Wexford Soccer Club confirmed that the offender is a volunteer and coach within the organization.
[19] It is very difficult to reconcile a person who commits the crimes before this court with the person described in these letters.
[20] The crimes of which the offender was convicted are very serious yet only netted the offender and his accomplice a few dollars and a used camcorder.
Impact on the Victim and/or Community
[21] Our home should be the place where we feel the safest and most secure. Our home should be an oasis where we can relax and remove ourselves from the risks that are part of our urban society.
[22] Home invasion crimes are reprehensible and must be dealt with harshly. Our homes are to be our last bastion and need to be protected.
[23] Mr. Morgan did not provide a victim impact statement. He was, as noted previously, injured as a result of the robbery.
Legal Parameters:
[24] The first count is, stealing with the use of violence, contrary to section 344 of the Criminal Code.
[25] The second count involves the use of an imitation firearm contrary to section 85(2) of the Criminal Code the minimum punishment is one year imprisonment to be served consecutively to any other punishment imposed on the person for an offence arising out of the same event to any other sentence imposed.
[26] The third count is unlawful confinement contrary to section 279(2) of the Criminal Code. It has no minimum sentence and a maximum sentence of a term not exceeding ten years.
[27] The last count is assault with a weapon, an imitation firearm, contrary to section 267(a) of the Criminal Code. There is no minimum sentence and a maximum sentence of ten years.
Positions of Crown and Defence:
[28] The Crown seeks the imposition of a prison term of 8-9 years.
[29] Pursuant to section 348.1 of the Criminal Code, the court is obligated to consider as an aggravating circumstance the fact that the dwelling-house was occupied at the time of the commission of the offence.
[30] The Crown asks me to consider as aggravating factors the use of a firearm albeit an imitation firearm and the gratuitous violence during the robbery.
[31] It is submitted that the offence was planned and involved the use of masks to avoid identification.
[32] In regards to mitigating factors, the Crown acknowledged the letters filed in support of the offender but notes they are in stark contrast to the circumstances of the offences.
[33] With respect to sentencing, the Crown relies on the following authorities: R. v. Wright (2006), 2006 40975 (ON CA), 83 O.R. (3d) 427 (C.A.), R. v. Soares, [1996] O.J. No. 5488 (Gen. Div.), R. v. D.W., [2004] O.J. No. 5825 (Ont. Sup. Ct.), R. v. Nelson, 2001 5235 (ON CA), [2001] O.J. No. 2585 (C.A.), R. v. Harriott (2002), 2002 23588 (ON CA), 58 O.R. (3d) 1 (C.A.), aff’d 2003 SCC 5, [2003] S.C.J. No. 4, and R. v. Walsh, 2011 ONCA 325, [2011] O.J. No. 1835.
[34] Counsel for the offender referred to R. v. Whalen, 2011 ONCA 74, [2011] O.J. No. 312 and R. v. Carpenter, [1999] O.J. No. 517. A number of other authorities are set out in the defence book of authorities.
[35] Counsel for the offender argues that a three year sentence would be appropriate. This is broken down as two years for three of the counts, served concurrently, and one year for the firearm offence, to be served consecutively.
[36] It is submitted the offender is relatively youthful, his record is dated and he is the father of one child and soon to be the father of another.
[37] It is submitted that a sentence of three years will prevent the offender from missing all of his new child’s early childhood.
[38] It is submitted that a sentence of three years would strike a balance of the needs of the administration of justice and those of the offender.
[39] Defence counsel submitted that the strict pre-trial bail terms should also be taken into account. Some reduction of sentence, it is argued, would be appropriate given the bail terms which were described as strict house arrest.
Case Law:
[40] In R. v. Wright, commencing at paragraph 13, the court discusses home invasions.
[41] Such crimes are referred to a serious, and increasingly prevalent in our society. As in our case, the crime committed by Mr. Wright was a home invasion, involving violence and guns and with the confinement of the occupants.
[42] At paragraph 14 I quote:
As this court also noted in S. (J.), supra, at para. 34, home invasion offences are particularly troubling “because they represent a violation of the sanctity of the home and of the sense of security people feel when in their homes- highly cherished values in our society- and because they are frequently perpetrated against vulnerable individuals.” They must therefore be dealt with sternly by the courts.
[43] It was recognized that a lengthy penitentiary term is fully warranted.
[44] From paragraph 18 I quote, “In my view however, the trial judge was correct to observe that this court, and other appellate courts, have imposed sentences that exceed the five-to-eight year range”.
[45] At paragraph 23 the court notes the full range is 5 to 13 years.
[46] Finally from paragraph 24, I quote:
I agree with the British Columbia Court of Appeal in A.J.C. (at para. 29), however, that in cases of this nature the objectives of protection of the public, general deterrence and denunciation should be given priority, although of course the prospects of the offender’s rehabilitation and the other factors pertaining to sentencing must also be considered. Certainly, a stiff penitentiary sentence is generally called for.
[47] In R. v. Soares, the accused committed a robbery, invading a private home and wearing a disguise with intention to commit robbery, threatening death, forcible confinement and assault with a knife.
[48] Mr. Soares was sentenced to nine years after a guilty plea. The sentence was upheld by the Court of Appeal.
[49] In R. v. D.W., Justice Nordheimer, after a guilty plea, imposed a ten year sentence with respect to a home invasion. The perpetrators were armed with hand guns, committed violence and confined a number of people.
[50] R. v. Nelson is a decision of the Ontario Court of Appeal. Mr. Nelson was convicted of robbery by home invasion in which involved a disguise and violence, and was sentenced at trial to eight years. Taking into account pre-trial custody the sentence was equivalent to nine years and eight months.
[51] The Appeal Court held that a total sentence of nine years was appropriate but ruled that the trial judge did not give proper consideration to the pre-trial custody. The sentence was reduced to seven years.
[52] It is to be noted that Nelson was only 21 years old with a minor criminal record.
[53] In R. v. Harriott, the appellant was convicted of six charges arising from a home invasion. The circumstances included a gun and the use of a disguise. At the first trial he was sentenced to four years.
[54] The trial judge at the second trial regarded the sentence as inadequate and believed a sentence of ten years was appropriate.
[55] The sentence was upheld by the Supreme Court of Canada. At paragraph 54 the court states:
In light of Soares, I cannot say that the trial judge erred in concluding that the original sentence was inadequate. He was, therefore, entitled to increase the sentence. His further determination that the horrible circumstances of the home invasion robbery, the previous criminal record of the appellant, and the devastating effect of the robbery on the complainants warranted a sentence of ten years imprisonment (from which he deducted about five months) is, in my view, also supportable.
[56] R. v. Walsh is a decision of the Ontario Court of Appeal. The case involved a home invasion in which the accused was looking for drugs. The accused had a record including four penitentiary sentences.
[57] The accused was an addict. There was evidence before the sentencing judge of the accused’s exemplary efforts at rehabilitation and contributions to the community. The trial judge imposed a sentence of 18 months.
[58] The Court of Appeal stated the sentence was outside the normal range for a home invasion robbery. The judge had overemphasized the principle of rehabilitation and did not give priority to the principles of general deterrence and denunciation which would have resulted in a period of imprisonment of eight years.
[59] I also want to reference paragraph 10 of R. v. Walsh which states:
Based on R. v. Downes (2006), 2006 3957 (ON CA), 79 O.R. (3d) 321, it may be appropriate in some circumstances to give credit for the impact of pre-sentence conditions. However, this court has repeatedly made clear that such credit is not automatic and that bail conditions are not equivalent to pre-trial custody.
[60] The Court concluded that the offender’s unusual and exceptional efforts at rehabilitation justified non-interference with the sentence imposed.
[61] Turning to a case cited by the defence, R. v. Whalen, is a decision of the Ontario Court of Appeal. The Crown was appealing the sentences of the two accused which were less than two years plus probation for three years.
[62] The case involved a home invasion using weapons and threats. The Court of Appeal, at paragraph 6 noted that the trial judge’s reasons show that he was aware of the applicable principles of sentencing and the range of sentencing for home invasions set by this court. It was noted that the sentence range is not set 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.”
[63] I quote from paragraph 8 as follows:
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 need a general deterrence and denunciation.
[64] A case included in the defence book of authorities is R. v. McLean, [2013] O.J. No. 370 and is a decision of D. A. Harris J. of the Ontario Court of Justice. The accused pleaded guilty to sexual interference and break and enter of a dwelling-house. The accused, after a night of drinking broke into a house thinking it was his cousin’s home. While in the house he had some sexual contact with an eight year old child.
[65] The accused was 25 years old and had no criminal record, and was working towards sobriety and his high school diploma. The learned judge recognized the offence was fueled by alcohol and that there was a very real prospect of rehabilitation.
[66] Nevertheless, recognizing the primary sentencing considerations were denunciation and deterrence, D. A. Harris J. sentenced the accused to four years imprisonment.
Mitigating and Aggravating Factors:
[67] I agree with the submissions of the Crown alluded to earlier with respect to aggravating factors.
[68] I accept as mitigating factors the information contained in the letters of character filed on behalf of the offender.
Principles of Sentencing:
[69] The primary principles in this matter are denunciation and deterrence. That is not to say that the principle of rehabilitation merits no consideration.
Reasons:
[70] I am aware that I am not bound by the range suggested as it is not “fixed in stone”. I do think however that a sentence outside of the range is the exception.
[71] The offender is 30 years of age, and I do not consider him to be “youthful”. He has a criminal record. Notwithstanding the letters of character filed on behalf of the offender, the actions of the offender are not out of character given his criminal record. The home invasion was planned and executed and the offences involved the use of a mask, and a gun and the victim was struck across the head by the gun.
[72] I am not prepared to take into consideration the pre-trial terms of bail which defence counsel described as strict. The fact is he was not incarcerated pending trial and was allowed to remain in his home notwithstanding the circumstances of the offences.
[73] The accused remained out of custody after conviction and pending sentencing. I also note that the period of time between the sentencing hearing and the release of this sentencing, was for a much longer period of time than normal. It was extended, at the request of the offender so he could be home for the birth of his second child and be able to spend some time with the infant.
[74] I do believe there is a chance for rehabilitation given the number of people who care for, and speak highly of the offender. I accept that the offender has a positive impact on young people including his son and nephews. I do not accept that he can be considered a role model. However, I accept there are some positive attributes and for that reason will not sentence him to the time sought by the Crown.
[75] Nevertheless, the crimes are serious and a significant penitentiary sentence is required. The sentence suggested by defence counsel is insufficient.
Final Decision:
[76] On counts 1, 3 and 4, I sentence the offender, Ajala Oswald, on each count to four years imprisonment, to be served concurrently.
[77] On count 2, the use of an imitation handgun, I sentence the offender to one year imprisonment to be served consecutively to the other sentences.
[78] The global sentence is to be five years and I consider that to be at the low end of the range for sentences for crimes of this nature. Such a sentence provides for a significant amount of penitentiary time to satisfy the principles of denunciation and deterrence. It also is not so long as to prevent the offender from rebuilding his relationship with his children upon his release.
Bielby J.
Released: September 12, 2013
COURT FILE NO.: CRIMJ(P) 1540/11
DATE: 2013-09-12
ONTARIO
SUPERIOR COURT OF JUSTICE
B E T W E E N:
HER MAJESTY THE QUEEN
- and –
AJALA OSWALD
Defendant
REASONS FOR SENTENCING
BIELBY J.
Released: September 12, 2013