COURT FILE NO. : CR13-50000054
DATE : 20131120
WEDNESDAY, NOVEMBER 20, 2013
REASONS FOR SENTENCE
MOLLOY, J. (Orally):
A. The Offences
Clifton Drepaul was convicted by a jury of:
i. break and enter with intent to commit a criminal offence,
ii. wearing a disguise with intent,
iii. robbery,
iv. unlawful confinement,
v. possession of stolen property, and
vi. trafficking in stolen property.
These offences occurred on March 7th, 2012. On that occasion, in the middle of the day, three men unlawfully entered a private home that was the dwelling place of a family consisting of a mother, father, son and teenage daughter. One of the three men was Manuel Rieaz, a former boyfriend of the teenage daughter (J.J.). The other two were R.R. (a minor) and Clifton Drepaul. Mr. Rieaz had stolen J.J.'s keys a few days before and those keys were used to enter the home. The plan was to rob the place. That is the subject matter of the first charge of break and enter.
All three men wore face masks. That is the subject of the second count, wearing a disguise with intent.
They did in fact rob the home of many items. Later that same day, the same three men, accompanied by two young women went to a pawn shop and sold some of the electronics items. That is the subject matter of the robbery count and the two stolen property counts.
When the intruders entered the house, J.J. was in her bedroom upstairs. She came downstairs and immediately recognized Mr. Rieaz and Mr. Drepaul. Mr. Rieaz immediately attacked J.J. He held a knife to her throat, threatened to kill her and punched her in the head. Then he put her in the bathroom of her parents' bedroom and ordered her to stay there. She remained in the bathroom, as ordered, while the intruders tore out the phones and ransacked the house. After they left with the stolen property, she ran next door and called for help.
The confinement of J.J. in the washroom was the subject matter of the unlawful confinement conviction. The jury was instructed that although Mr. Rieaz was the one who actually put J.J. in the washroom, Mr. Drepaul could be guilty of that offence if he either aided Mr. Rieaz in accomplishing it or was a joint party with Mr. Rieaz as part of a common criminal enterprise.
Mr. Drepaul was also charged with assault with a knife and common assault. Again, this depended on whether Mr. Drepaul could be found to have assisted Mr. Rieaz in this offence or if he could be found to be a joint party, based on common criminal purpose. The use of the knife and the assault occurred immediately upon J.J. encountering Mr. Rieaz in the house and there was no evidence that the knife was brought to the scene. Rather, there was some evidence that Mr. Rieaz may have grabbed it from the kitchen just after J.J. heard the alarm and called out. The jury acquitted Mr. Drepaul on both of these counts.
B. The Position of the Parties
The Crown submits that the range for a home invasion type offence is from 4 to 13 years, relying on the Ontario Court of Appeal decision in R. v. Wright, (2006), 2006 40975 (ON CA), 83 O.R. (3d) 427, and that the appropriate sentence for Mr. Drepaul is at least 6 years.
The defence characterizes this offence as a simple break and enter rather than a home invasion and submits that in all the circumstances, two years is a fit sentence. Alternatively, if this offence was a home invasion, he submits that Mr. Drepaul should be sentenced to four years, at the very bottom of the range.
C. Nature of Offence: Simple Break and Enter or Home Invasion?
The defence argues that this break-in cannot properly be characterized as a home invasion because the robbers entered with a key and at a time when they did not expect anybody to be at home and because Mr. Drepaul was not involved in any violence.
I do not agree. This was a home invasion. There is no separate offence of "home invasion" in the Criminal Code. It is merely a term developed in case law to distinguish certain types of situations in which there has been a break-in to a dwelling house. It follows that not every break-in to a dwelling house should be characterized as a home invasion. In R. v. J.S. (2006), 2006 22101 (ON CA), 81 O.R. (3d) 511, the Court of Appeal considered what elements should be present for a break-in to be considered a home invasion.
The Court of Appeal started this analysis by referring to s. 348.1 of the Criminal Code, stating as follows, at para. 29:
Although the term "home invasion" is not defined in the Criminal Code or the Y.C.J.A., s. 348.1 of the Code provides an instructive reference point. Under the heading "Aggravating circumstances - home invasion", s. 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 (a) knew that or was reckless as to whether the dwelling house was occupied and (b) used violence or threats of violence to a person or property.
In describing what constitutes a home invasion, Justice Blair held, at para. 30 and 32:
Section 348.1 has no application to sentencing under the Y.C.J.A., of course. However, the factors it lists -- the types of offences mentioned, committed in the context of an occupied home and accompanied by the use or threat of violence -- are common to the notion of home invasion articulated in a number of authorities that have considered the issue, and to which I will refer in a moment. In my view, it is the presence of the occupants of the home, with the violation of their sense of sanctity and security in that place and the attendant exposure to the threat (express or implied) of physical or psychological harm, that sets the home invasion apart from break and enter robbery, and other offences committed in relation to a home. Such a crime is a "violent offence" within the meaning of s. 39(1)(a) of the Y.C.J.A. because it is an offence in which the young person "causes, attempts to cause or threatens to cause bodily harm" -- physical or psychological.
Consistent with the theme outlined in para. 30 above, there appears to be general agreement in these authorities that the main features of home invasion include breaking and entering a dwelling place for purposes of committing a theft or robbery, knowing that (or being reckless as to whether) the home is being occupied, and using or threatening to use violence. The presence of weapons is often a factor, as is the confinement of the occupants of the home in some fashion.
I find that the break and enter in this case satisfies these criteria. The place broken into was a dwelling place, a home which the perpetrators knew to be inhabited by four people. One of those individuals, J.J., was at home at the time of the break-in. Many of the sentencing cases dealing with home invasions refer to the psychological trauma suffered by victims of a home invasion. For example, the Court of Appeal, in Wright, referred with approval to an excerpt from Justice Trafford's decision in R. v. Soares, and stated at para. 14:
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. This concern was eloquently captured by Trafford J. In R. v. Soares [1996] O.J. No. 5488 (SCJ) at para. 286:
The sanctity of one's home is of fundamental importance in a free and democratic society. It is constitutionally recognized in our country. Everyone must not only be, but feel, secure in their residence. A society that tolerates significant criminal intrusions into the privacy of one's home is a society that forces it (sic) citizens to resort to self-help to protect themselves against such wrongs. Absent effective responses from the judiciary, the alternative is for citizens to arm themselves in anticipation of a need to defend themselves against such criminal enterprises. A society like that is not ours today, has not been ours in the past, and will not be ours in the future. The obligation of the court is to give proper recognition to the sanctity of the home, to protect all citizens against such intrusions, and to thereby preserve the public's confidence in the administration of justice.
That is precisely the situation here. J.J. testified at trial, and also eloquently expressed in her victim impact statement, her feelings of vulnerability and fear and loss of all sense of security since the violation of the sanctity of her home, where she had previously felt safe.
I recognize that Mr. Drepaul did not enter the home with the deliberate purpose of attacking its inhabitants. That is not a requirement to fall within the home invasion rubric. It also does not matter that the intruders gained entry with a key rather than forcing a window or a door in a violent way. Entry was gained illegally with a stolen key. That is nonetheless an invasion of the sanctity of that home.
Finally, I reject the submission that because the intruders expected to find an empty house, this cannot be a home invasion. I accept that the three robbers selected a time of day when they expected the parents would be at work and the two children would be at school. However, by entering the home, they willingly took the risk that somebody could be there. Many situations could arise that would result in one or more persons being at home, including the one that actually happened here -- an illness that kept a person home from school or work.
The robbers in this case, including Mr. Drepaul, took no steps to ensure that the house was in fact empty. For example: they did not stake out the house to watch its inhabitants leave in the morning; they did not attempt to call the residence phone to see if anybody answered; they did not look in before entering; and they did not knock on the door before going in. Instead, they opened the door and walked in taking the risk that there could be somebody there and being reckless as to that risk.
Indeed, I find that they prepared for that eventuality by wearing masks covering most of their faces. In my view, the only rational explanation for the masks is to hide their identity from anyone who might happen to be at home. That purpose was confirmed by R.R. in his evidence at trial. Manuel Rieaz testified that the purpose of the masks was to disguise their appearance in case neighbours might see them. I reject that evidence as absurd. Although the sight of three young men entering the house with a key might not arouse much concern with the neighbours, certainly three masked men entering the house would do so. Mr. Rieaz told deliberate lies about numerous things in the course of his testimony. The story about the purpose of the mask is just one example of an outright lie.
I find as a fact that the purpose of the masks was a precaution in case anybody was at home, which is always a possibility when entering a dwelling house, and was not only a possibility but a reality in this case. I am satisfied beyond a reasonable doubt that Mr. Drepaul was aware of the risk that somebody would be at home and that he disguised himself for that purpose.
I also note that this home invasion was accompanied by violence. None of the invaders fled upon discovering somebody was in the house. Rather, the occupant was assaulted, threatened and unlawfully confined as the planned robbery continued. Mr. Drepaul was not convicted of the assaults on J.J. by punching her and threatening her with a knife. However, he was convicted of unlawful confinement, which itself is a crime of implicit violence.
This offence was not a mere break and enter. It has all the hallmarks of a home invasion and the sentencing range for home invasion type offences is clearly applicable.
D. Nature of the Offender
Mr. Drepaul is now 24 years old and was 23 at the time of the subject offences. He has no criminal record as an adult. However, there is a youth record from September 2007 involving a conviction for theft for which he was given a conditional sentence of 12 months.
I am therefore treating him as a youthful first offender. I do note, however, that he was significantly older than his two co-accused who were 18 and 16 years old at the time of the offences.
Mr. Drepaul has a grade 9 education and has three-and-a-half credits towards grade 10. He has worked in the past in manual labour type jobs, the longest period of such employment being from December 2012 to May 2013 as an assembler for a furniture company.
He has a three year old child from a previous relationship with whom he does not have regular contact. He also has an 11 month old baby from his current girlfriend, Michelle Cosme. His ability to see her and the baby have been hampered until recently by bail restrictions as a result of Ms. Cosme having been a co-accused on the stolen property related counts.
He appears to have a good relationship with his grandparents with whom he resided through most of his teens and who seemed to have been in a parental role with him.
The presentence report is generally positive, although by no means glowing.
Mr. Drepaul continues to deny his role in the break-in, which is his right. However, he did tell the person who authored the presentence report that he takes responsibility for selling the stolen goods, describing it as a "big mistake" and the "wrong choice". This does not, in my view, amount to any degree of remorse. He was caught on video dealing with the stolen items at a pawn shop, so accepting responsibility for that is merely accepting the inevitable.
His grandparents attributed his criminal conduct to associating with the wrong people, as did Mr. Drepaul himself. However, as I have already indicated, Mr. Drepaul was five years older than Mr. Rieaz and seven years older than R.R.
E. Aggravating and Mitigating Factors
Mr. Drepaul's relative youth and lack of a criminal record are mitigating factors. He has family support and a work record. Rehabilitation is a realistic prospect.
The nature of the offence and its impact on the victim are the most significant aggravating factors. I have already referred to case law that has emphasized the need for denunciation and deterrence in cases of home invasion because of the nature of that offence and its impact on the victim. In this case, that impact was far beyond theoretical. It was clear from J.J.'s evidence at trial that she has been greatly affected by this crime. She was a vulnerable 17 year old at the time of the offence and was at home by herself. I recall in particular how she broke down in tears when looking at a photograph of her ransacked bedroom. The following excerpt from her victim impact statement paints a vivid picture. She wrote:
Overall, this case has affected my mentality. When I leave the house to go to school, in the back of my mind is whether something will happen again, or even worse. When I am actually at home, the alarm is ALWAYS on because of the fear that something might happen again and someone may break in. A "home" should be somewhere I can come to and feel safe and secure. Unfortunately, I no longer feel safe and secure in my home because of this incident. We had to change all our door locks and window seals because of the crime.
The actions of the accused have greatly affected my life. Since he committed this crime, I have been unable to sleep at night. I am always wondering about what could happen at any moment. I am constantly afraid that someone will break into my home and injure me again. I am no longer able to trust people like I did before.
While recognizing Mr. Drepaul's role in this, however, I also note that he was not the ringleader. It was Mr. Rieaz who hatched the plan and stole J.J.'s house keys. Further, it was Mr. Rieaz who physically assaulted J.J. and the jury did not find Mr. Drepaul responsible for those actions. However, he is responsible for the unlawful confinement, as well as the robbery.
Also, although he was not the ringleader, he was not only older than the other two, he was also substantially larger and stronger. He could have resisted. He did not. He was clearly a willing participant during and after the event.
F. Parity of Sentence
As much as possible, similar offenders should receive similar sentences for similar crimes. In this case, the range of sentence for home invasions, as established by the Court of Appeal in Wright, is very broad, from a low of 4 to 5 years to a high of 12 to 13 years. The breadth of that range reflects the fact that there are dramatically different ways in which the offence can be committed, as Justice Blair himself noted in that case.
With respect to Mr. Drepaul's involvement in this case, his conduct was towards the lower end of the scale. He did not have a weapon and did not himself threaten or assault J.J. Although she was unlawfully confined, she was not tied up as often happens in these kinds of cases and her confinement was of relatively short duration. Thus, although horrible for the victim (as all home invasions are) this one was not especially egregious.
Some of the case authority submitted by the defence is not particularly helpful because the offences involved were not home invasions. In other instances, the cases either predate or make no reference to the Court of Appeal's seminal decision in Wright and refer to a sentencing range of five to eight years. In addition, I would distinguish the Court of Appeal decision in R. v. Finnessey, 2000 16862 (Ont. C.A.). Because of the very different underlying circumstances as well as what the court referred to as the offender's "truly tragic background" it simply is not a comparable case.
In R. v. Wang, (2001), 2001 20933 (ON CA), 153 C.C.C. (3d) 321 (Ont. C.A.), a 19 year old offender with a minor prior criminal record had been sentenced by the trial judge to 10 years concurrent on each of three home invasion charges. Unlawful confinement and the use of weapons were features of each home invasion. However, Mr. Wang's role was described as being a lookout. On appeal, the Court of Appeal reduced the sentence to five years citing the offender's age and lack of criminal antecedents, as well as the trial judge's failure to apply the range previously identified by the Court of Appeal of five to eight years for home invasion type offences.
Like Mr. Wang, Mr. Drepaul played a more minor role in the home invasion and had only a minor prior criminal record. Mr. Wang was 19, whereas Mr. Drepaul was 23, but Mr. Wang was involved in 3 home invasions whereas Mr. Drapaul's conviction relates to only one incident. I note as well, that this decision preceded Wright in which the Court of Appeal accepted a much broader range for sentencing in home invasion cases. However, I do agree with the submission of defence counsel that there are some similarities between these two offenders.
With respect to the case law relied upon by the Crown, much of it is distinguishable because of the involvement of firearms. The use of a firearm in a home invasion is a seriously aggravating factor. Mr. Drepaul did not carry a weapon on this break-in and there is no evidence that he had any knowledge that his accomplices were armed. He was acquitted of the assault on J.J. with a knife. Also, the cases relied upon by the Crown, for the most part, involved offenders with more serious criminal records.
Finally, it is relevant to consider the sentences imposed on the other two offenders involved in this home invasion. R.R. was a young offender, being only 16 at the time of the offence. That is an entirely different sentencing regime and of no assistance in determining the appropriate sentence for Mr. Drepaul.
Mr. Rieaz, however, is a different matter. He pleaded guilty at the preliminary hearing stage and the hearing judge determined that he was genuinely remorseful. Those are strong mitigating factors. He was only 19 years old, which is also a mitigating factor. Mr. Drepaul experienced some disruptions in his youth when his parents split up and he moved back and forth between his parents and grandparents. However, Mr. Rieaz's youth was even more troubled, another mitigating factor. However, there are also factors that make Mr. Rieaz's situation worse than Mr. Drepaul. Mr. Rieaz was the instigator of this plan and the main actor at the time of the offence. He was the one who actually assaulted J.J. by punching her in the head and threatening her with a knife. Further, for a person so young, he had amassed a fairly significant criminal record, including two prior convictions for robbery. At the time of the sentencing on this offence, Mr. Rieaz also pleaded guilty to an earlier armed robbery involving a number of people on the street. In light of Mr. Rieaz's guilty plea on both offences, the Crown sought a sentence of one year on the armed robbery and four years consecutive for the home invasion offences involving J.J. for a total sentence of five years. The sentencing judge, French J., sentenced Mr. Rieaz to one year for the armed robbery and three years and three months on the home invasion charges. In explaining that result, Justice French pointed primarily to the prospects of rehabilitation, the totality principle, and the need to avoid a sentence so crushing as to discourage Mr. Rieaz from wanting to change his life for the better.
G. Analysis and Conclusion
Mr. Drepaul does not have the mitigating factor of a guilty plea. I recognize that the impact of a guilty plea and the presence of genuine remorse can be significant and can sometimes justify dramatic differences in the sentences of two offenders for the same offence (see R. v. Mann, 2010 ONCA 342, 2010 ON.C.A., 342).
However, the principle of parity requires that I take into account the sentence received by Mr. Rieaz. It was reduced because of totality, as well as the guilty plea and positive steps towards rehabilitation. Mr. Drepaul does not have those mitigating factors, although rehabilitation is certainly a prospect for him. However, Mr. Rieaz's conduct in relation to this offence was worse and his prior criminal record was significantly worse. I recognize that as a party to the home invasion Mr. Drepaul is guilty of that offence along with the other perpetrators. Nevertheless, there are degrees of more blameworthiness within that sphere and I find Mr. Drepaul to be at the low end of that scale.
Mr. Drepaul also has reasonable prospects for rehabilitation, he has been employed in the past and there is every reason to believe he will be again. His family is supportive.
Deterrence and denunciation are always primary considerations in a crime of this nature, as recognized by the Court of Appeal in Wright. That is why the bottom end of the range for this offence is four to five years, a not insignificant sentence and one which would be served in a penitentiary.
In all of the circumstances of this offence and of Mr. Drepaul, I cannot say he should be at the very bottom of the range. However, I believe the appropriate sentence is close to that, particularly in light of the sentence imposed on Mr. Rieaz.
Accordingly, I find that the appropriate sentence for Mr. Drepaul is four-and-a-half years. He has served 10 months pretrial custody, which brings the time remaining to be served to 3 years and 8 months. In addition, there will be a DNA order and a s. 109 order for 10 years.
FORM 2
Certificate of Transcript
Evidence Act, Subsection 5(2)
I, Gerri Findlay, certify that this document is a true and accurate transcription of the recording of R. v. Drepaul, Clifton in the Superior Court of Justice held at 361 University Avenue, Toronto, Ontario taken from Recording(s) No. 4899-2-5-20131120-090207-20-MOLLOY which has been certified in Form 1.
March 6, 2014 Gerri Findlay - Certified Court Reporter
NOTE: These Reasons for Sentence have been judicially edited.
SUPERIOR COURT OF JUSTICE
T A B L E O F C O N T E N T S
Exam. Cr- Re-
WITNESS: in-Ch. exam. exam.
E X H I B I T S
EXHIBIT NUMBER ENTERED ON PAGE
Transcript Ordered: ....................March 3, 2014
Transcript Completed: ..................March 6, 2014
Ordering Party Notified: ...............March 6, 2014
SUPERIOR COURT OF JUSTICE
361 University Avenue
HER MAJESTY THE QUEEN
v.
CLIFTON DREPAUL
REASONS FOR SENTENCE
THE HONOURABLE JUSTICE A. MOLLOY
on November 20, 2013, at TORONTO, Ontario
APPEARANCES:
Mr. P. Zambonini
Counsel for the Crown
Mr. D. Goldstein
Counsel for Clifton Drepaul