Court File and Parties
COURT FILE: CrimJ 2043/12 DATE: 2014-04-01 ONTARIO SUPERIOR COURT OF JUSTICE
BETWEEN:
HER MAJESTY THE QUEEN
D. D'Iorio, for the Crown
- and -
David MILLS, Howard HYLTON and Triston DENNIS
L. Miller for Mr. Mills; T. Mackay for Mr. Hylton; and S. Wickramasinghe for Mr. Dennis
Defendants
Heard: Nov. 6, 2013, January 30 and February 3, 21 and April 1, 2014
REASONS FOR SENTENCE
Ricchetti, J.
Contents
OVERVIEW... 3
DETERMINING THE FACTS. 4
THE FACTS. 7
Circumstances of the offence. 7
The Sentencing Hearing. 10
Circumstances of the offender 11
David Mills. 11
Howard Hylton. 12
Triston Dennis. 13
Impact on the Victim and the Community. 14
LEGAL PARAMETERS. 15
THE POSITION OF THE CROWN.. 17
David Mills: 17
Howard Hylton: 17
Triston Dennis: 17
THE POSITION OF THE DEFENCE. 17
David Mills: 17
Howard Hylton: 17
Triston Dennis: 18
CASE LAW... 18
MITIGATING AND AGGRAVATING FACTORS. 21
David Mills: 23
Howard Hylton: 24
Triston Dennis: 25
PRINCIPLES OF SENTENCING.. 26
REASONS. 28
David Mills. 28
Howard Hylton. 31
Triston Dennis. 33
PRE-SENTENCE CUSTODY.. 34
ANCILLARY ORDERS. 35
FINAL DECISION.. 36
David Mills. 36
Howard Hylton. 36
Triston Dennis. 36
OVERVIEW
[1] After a lengthy trial with a jury, on July 13, 2013:
a) David Mills was found guilty of the following offences:
• Count #4 - commit a robbery on Darren John (s. 344(1) (a));
• Count #7 - possession of a loaded prohibited firearm (s.95); and
• Count #9 - evading the police (s. 249.1).
b) Howard Hylton was found guilty of the following offences:
• Count #1 - commit a robbery on Margaret Rose John(s.344(1) (a);
• Count #2 - unlawfully confining Margaret Rose John (s. 279 (2));
• Count #3- use of a firearm while committing the unlawful confinement of Margaret Rose John (s. 85(1)(a));
• Count #4 - commit a robbery on Darren John (s. 344(1) (a));
• Count #5 - with the intent to wound, discharged a firearm at Darren John (s. 244(2) (a));
• Count #6 - wounding Darren John thereby committing an aggravated assault (s. 268);
• Count #7 - possession of a loaded prohibited firearm (s.95); and
• Count #8 - with intent to commit an indictable offence, have face masked (s. 351(2)).
c) Triston Dennis was found guilty of the following offences:
• Count #1 - commit a robbery on Margaret Rose John (s.344(1) (a);
• Count #2 - unlawfully confining Margaret Rose John(s. 279 (2));
• Count #3- use of a firearm while committing the unlawful confinement of Margaret Rose John (s. 85(1)(a));
• Count #4 - commit a robbery on Darren John (s. 344(1) (a));
• Count #6 - wounding Darren John thereby committing an aggravated assault (s. 268);
• Count #7 - possession of a loaded prohibited firearm (s.95); and
• Count #8 - with intent to commit an indictable offence, have face masked (s. 351(2)).
DETERMINING THE FACTS
[2] As too often occurs, there were numerous counts in the Indictment, some of which were duplicative arising from the same transaction. In addition, in this case, multiple theories of liability were urged by the Crown, not only making the final jury charge complex, but also creating a challenge in determining which facts in this case were, expressly or implicitly, essential to the jury's guilty verdicts.
[3] Another issue arose in this case given the wording of the charges. Count #1 and Count #4 deal with the robbery offences relating to Margaret Rose John and Darren John respectively. These counts in the indictment referred to s. 344(1) (a) of the Criminal Code, the penalty section for robbery and more specifically, the penalty section for robbery with a firearm. The jury was charged with regard to the offence of robbery (s. 343) rather than in s. 344(1)(a). No counsel raised any issue regarding the charge to the jury on these offences perhaps because in R. v. Manley (2011) 2011 ONCA 128, 269 C.C.C. (3d) 40 (Ont. C.A.) the reference to s. 344(1) (a) was not considered to be particularization of the elements of the offence of robbery but simply to put the accused on notice that a minimum penalty was being sought if the accused were convicted of the offence of robbery. In the case of Howard Hylton and Triston Dennis, there is no doubt that a loaded prohibited firearm was used in the commission of the robbery and they were aware of its use during the course of the robbery even before its discharge. No defence submission was made during any of the three separate sentencing hearing days that the 5 year minimum did not apply. However, an issue arises with David Mills. With regard to the time of Mr. Mills’ possession of the firearm, the Crown submitted and the jury was charged on the basis that possession of the firearm by Mr. Mills could have been prior to the robbery, after the robbery or during the flight. The issue is whether, if Mr. Mills did not have knowledge of the firearm until after the robbery had been committed, would the minimum sentence apply to him? Nevertheless, I provided all counsel an opportunity to address this issue if they wished to do so and the sentencing hearing was adjourned once again. Submissions on this issue were heard on April 1, 2014. Counsel for Mr. Hylton and Mr. Dennis made no submissions on this issue as the suggested sentences for these two offenders would exceed 5 years in the circumstances. With respect to Mr. Mills, the Crown submitted that the 5 year minimum sentence would apply to Mr. Mills’ conviction regardless of whether he had prior knowledge that the firearm would be used or ought to have known that a firearm would be used in the robbery. The Crown submitted that the only pre-condition is that the firearm was “used” in the robbery regardless of whether the offender knew or ought to have known the firearm would be used in the robbery. Mr. Mills’ counsel submitted that if the court finds Mr. Mills did not know a firearm was to be used in the robbery, the minimum would not apply to Mr. Mills. It is important to note that Mr. Mills’ counsel had submitted that a 5 year sentence, “more or less” was a fit and proper sentence in the circumstances of the offence and Mr. Mills. However, after this issue was raised by the court, Mr. Mills’ counsel suggested a 4 year sentence for the robbery.
[4] For this sentencing, I am mindful of the following provisions of s. 724 of the Criminal Code:
(1) In determining a sentence, a court may accept as proved any information disclosed at the trial or at the sentencing proceedings and any facts agreed on by the prosecutor and the offender.
(2) Where the court is composed of a judge and jury, the court
(a) shall accept as proven all facts, express or implied, that are essential to the jury’s verdict of guilty; and
(b) may find any other relevant fact that was disclosed by evidence at the trial to be proven, or hear evidence presented by either party with respect to that fact.
(3) Where there is a dispute with respect to any fact that is relevant to the determination of a sentence,
(a) the court shall request that evidence be adduced as to the existence of the fact unless the court is satisfied that sufficient evidence was adduced at the trial;
(b) the party wishing to rely on a relevant fact, including a fact contained in a presentence report, has the burden of proving it;
(c) either party may cross-examine any witness called by the other party;
(d) subject to paragraph (e), the court must be satisfied on a balance of probabilities of the existence of the disputed fact before relying on it in determining the sentence; and
(e) the prosecutor must establish, by proof beyond a reasonable doubt, the existence of any aggravating fact or any previous conviction by the offender.
[5] The appropriate approach to the determination of facts for the purpose of sentencing was described by the Supreme Court in R. v. Ferguson [2008], S.C.C. 6 at paras. 21 and 22:
[21] ..... It was open to him under s. 724(2)(b) of the Criminal Code to supplement the jury’s findings insofar as this was necessary for sentencing purposes. However, it was not open to him to go beyond what was required to deal with the sentencing issues before him, or to attempt to reconstruct the logical process of the jury: Brown; Fiqia. Nor was it open to him to find facts inconsistent with the jury’s verdict or the evidence; a trial judge must never do this. The trial judge in the case at bar committed both these errors.
[22] First, the trial judge erred in attempting to reconstruct the logical reasoning of the jury. The law holds that the trial judge must not do this, and for good reason. Jurors may arrive at a unanimous verdict for different reasons and on different theories of the case: R. v. Thatcher, 1987 CanLII 53 (SCC), [1987] 1 S.C.R. 652. It is speculative and artificial to attribute a single set of factual findings to the jury, unless it is clear that the jury must unanimously have found those facts. Where any ambiguity on this exists, the trial judge should consider the evidence and make his or her own findings of fact consistent with the evidence and the jury’s findings.
THE FACTS
Circumstances of the offence
[6] Larry Dennis, Triston Dennis and Howard Hylton decided they were going to commit a home invasion robbery of Darren John, believing him to be a drug dealer.
[7] In the afternoon of August 23, 2011, Triston Dennis and Howard Hylton drove to Darren John's home in Mississauga. Triston Dennis used a rental vehicle, which had been rented by his common law spouse. To confirm they had the right address, they had a female knock on the door; Darren John answered. Satisfied, Triston Dennis and Howard Hylton returned to Scarborough.
[8] On the morning of August 24, 2011 Larry Dennis, Triston Dennis and Howard Hylton returned to Darren John's house with the rental vehicle to commit the robbery. They picked up David Mills before the robbery. There is no evidence David Mills was involved in the preparation of or intention to participate in the robbery prior to that morning. David Mills agreed to accompany the three men and become the getaway driver in the rented car.
[9] The four men drove to Darren John's home.
[10] David Mills remained in the getaway vehicle, parked on a nearby side street around the corner so that he could see Darren John's home.
[11] Larry Dennis had a loaded handgun. Larry Dennis, Howard Hylton and David Mills put on bandanas to cover their faces, caps, rubber gloves and went to Darren John's home.
[12] Darren's mother, Margaret Rose John, was having some work done to her front porch. She had $1,500 dollars in cash, in an envelope, to pay for the work. Margaret Rose John left the envelope on the front hall table.
[13] As a result of the work being done on the front door, the garage door was open permitting entrance into the house from the garage.
[14] The person working on the front porch went for lunch. Margaret Rose John went into the kitchen to make lunch for her daughter who was to attend for a visit. Darren John was upstairs in his bedroom sleeping.
[15] The three men decide to go into the house through the garage door. Given the work going on and the open garage door, the three men knew that person(s) were home at the time.
[16] Upon entering the home, the Larry Dennis and Howard Hylton immediately ran into Darren John's mother, Margaret Rose John. They told her to be quiet and had her go back into the kitchen. They forced her to sit down at the kitchen table. They asked her where the drugs were. Larry Dennis showed her the gun. Margaret Rose John was frightened. She was so frightened she urinated but had to remain seated in the kitchen. Triston Dennis then appeared also masked. Two men went looking through the lower level of the house for the drugs and money while Triston Dennis remained with Margaret Rose John in the kitchen.
[17] After a search elsewhere in the house, Larry Dennis and Howard Hylton decided to go upstairs. Triston Dennis remained in the kitchen with Margaret Rose John. She tried to get up several times but was forced to sit back down by Triston Dennis.
[18] Larry Dennis and Howard Hylton went to Darren John's room, awoke him and demanded drugs and money. Larry Dennis had the gun in his hand. Darren John is a large man with martial arts training. Darren John denied having any drugs several times. Darren John was not going to cooperate with Larry Dennis and Howard Hylton. Howard Hylton yelled to Larry Dennis: "Shoot him." Scared, Darren John decided to fight back. A struggle ensued.
[19] Larry Dennis and Howard Hylton decided to retreat quickly. While retreating, Larry Dennis discharged the firearm in the direction of Darren John, the bullet went through a wall and hit Darren John in the rear thigh with the bullet exiting his right knee.
[20] Triston Dennis also decided to leave quickly. On the way out, Triston Dennis took Margaret John's envelope with cash in it.
[21] The three men got into the getaway vehicle, David Mills drove off with the men. David Mills was the driver. Triston Dennis was in the front passenger seat. Larry Dennis was in the rear seat behind the driver. Howard Hylton was in the rear seat behind the passenger.
[22] 911 was immediately called with a description of the getaway vehicle. Within minutes, the getaway vehicle with the four men was spotted by the police. The police turned on their sirens. The getaway vehicle stopped on Eglinton Ave.
[23] The police, having heard the report that there had been a shooting during the robbery, remained behind their police cruisers with guns drawn. They asked the driver to throw out the keys. They asked the men to get out, one at a time.
[24] Initially, nothing happened. Then, Triston Dennis emerged from the passenger front door. However, within seconds, Triston Dennis jumped back into the getaway vehicle and the vehicle sped away. The police gave chase in a high speed pursuit down residential areas. The getaway vehicle attempted to make a left turn onto a side street but crashed into a pole.
[25] The four men got out and scattered.
[26] Triston Dennis and Howard Hylton were arrested within a short time.
[27] David Mills was found a short time later hiding in a shed.
[28] Larry Dennis was found a short time later hiding in a treed area of a nearby park.
[29] The bandanas were found. The plastic gloves used were found. Margaret Rose John's money and envelope was found on Triston Dennis.
[30] The loaded firearm used in the robbery was found behind a panel between the driver's and the front passenger's foot well. In other words, between the feet area of David Mills and Triston Dennis.
The Sentencing Hearing
[31] A Pre-Sentence Report (PSR) was obtained for each of the offenders. Some of the PSR's contained statements which are not appropriate or admissible at the sentencing hearing such as the views of the police officer relating to the offences. Such matters were not considered by this court.
[32] Victim Impact Statements (VIS) were filed on behalf of Margaret Rose John and Darren John. Some portion of the VIS referred to some matters not properly in a VIS such as a recitation by the maker of the circumstances of the offence some of which facts do not coincide with the facts as determined by this court. In Darren John's VIS, he chastises the offenders for not pleading guilty. Such matters, which are inappropriate to be in a VIS, were not considered by this court.
[33] Letters of Support and apology letters were filed on behalf of all three offenders.
[34] Evidence regarding programs taken, lock down reports and their behaviour during pre-sentence incarceration, were provide to the court on behalf of all three offenders.
[35] Each of the offenders made a statement to this court expressing remorse.
Circumstances of the offender
David Mills
[36] David Mills is now 26 years old.
[37] David Mills has a prior conviction for theft under (2005) where he received 2 years of probation. Within that probationary period, he was convicted of Possession of a Controlled Substance for the Purpose of Trafficking and Assault with Intent to Resist Arrest (2006) and sentenced to 18 months conditional sentence on each count.
[38] David Mills did not complete his college education, perhaps due to ADHD. David Mill has not had long term continuous employment. Mr. Mills was, prior to these events, unemployed.
[39] Alcohol is not an issue for Mr. Mills, but David Mills started using marihuana in Grade 8 and it became a problem for years. In 2006, he was ordered to attend the Teen Challenge program and attended, albeit reluctantly.
[40] There was nothing remarkable about David Mills’ upbringing which might explain why he participated in the commission of these offences.
[41] David Mills clearly has a large network of family and friends who are supportive of him. Many of his supporters blame David Mills' problems with the law on the people he associated with rather than bad choices made by David Mills. The difficulty is that David Mills also blames others rather than his own decisions.
[42] Mr. Mills filed a letter and told this court about his remorse and apology to Darren John and Margaret Rose John for what happened.
[43] David Mills' girlfriend has purchased a house. Upon his release from custody he intends to reside with her. David Mills states he hopes to have a career in computers when released from incarceration.
Howard Hylton
[44] Howard Hylton is 30 years old.
[45] He has no previous criminal record.
[46] Howard Hylton's upbringing does not explain why he was involved in the commission of these offences. He completed high school but not without being suspended or expelled for which he blames the teacher as did his mother.
[47] Howard Hylton has had numerous jobs over the years. He reports no alcohol or drug issues. He was unemployed at the time of the offences. He had been involved in church activities.
[48] Howard Hylton has a common law partner with two young children of the relationship.
[49] The probation officer found that Howard Hylton "provided information that was inaccurate or incomplete..." While his mother is supportive, she does describe her son as a "perfect child".
[50] Mr. Hylton's common law partner remains supportive. Howard Hylton has the support of the members of the community and his family.
[51] Howard Hylton expressed remorse as to what happened.
Triston Dennis
[52] Triston Dennis is 28 years old.
[53] He has no previous criminal record.
[54] Triston Dennis was raised by his mother. His father was not a significant part of his life. He dropped out of school in Grade 11, but appeared to try to better himself through an outreach program and a program at Centennial College. Unfortunately, Triston Dennis is not sure he will complete this program in the future.
[55] Triston Dennis had a difficult upbringing. By 18, he could no longer live with his mother as she was in subsidized housing. He blames his brother, Larry Dennis' actions, for some of his problems. Triston Dennis was given an opportunity to take a gang exiting course (due to his brother's gang affiliation), however, he did not complete the course.
[56] Candice Allen is his long term girlfriend and now fiancée. They have a very young child together, born after Triston Dennis was incarcerated on these offences.
[57] Triston Dennis has had numerous entry level and labour related jobs. He has had a history of drug use. He was unemployed at the time of the offences.
[58] To his credit, Triston Dennis returned to school and completed his first year of college. Regrettably, four days after having complete first year, he was arrested on these offences.
[59] Triston Dennis has the confidence and support of a number of persons he has come into contact with such as his former addiction counsellor and the manager at HYPE.
[60] Triston Dennis provided an apology letter and expressed remorse to Darren John and Margaret Rose John in court.
Impact on the Victim and the Community
[61] Margaret Rose John was traumatized by the entire events of the day. She was terrified. Urinated out of fear and forced to sit in her urine at gun point. It is entirely understandable that she remains fearful about what happened and fearful that it could happen again in her future. Margaret Rose John continues to be fearful of young black men. She feels that she now lives under a stigma of violence in her own neighbourhood.
[62] Darren Rose John is angry. He is fearful and is afraid to venture out from his home. His children's mother will not permit his children to visit Darren John at his house anymore because of what happened there. Darren John feels isolated from his neighbours and other members of his family who avoid him because of the allegations he was a drug dealer and what happened on August 24, 2011.
[63] Darren John was an instructor and a competitor in martial arts. Since being shot, he has had and continues to have physiotherapy. He has not been able to return to work. He can no longer instruct or compete in martial arts and is unsure whether he will ever be able to do so.
[64] Little needs to be said about the effect on the public when their safety is imperilled in their own homes in broad daylight. This horror becomes even more pronounced when this invasion of one's home comes from a gun wielding masked men. The horror and fear which befell the John's at their home on August 24, 2011, has a ripple effect throughout the entire community who worry this could happen to them.
LEGAL PARAMETERS
[65] The legal parameters of the sentences, under the Criminal Code at the time of the offences, which can be imposed are:
i. S. 344(1)(a): Robbery with a firearm - 5 year minimum to life for first offence
ii. S. 279(2) : unlawful confinement - up to 10 years
iii. S. 85(1)(a) : use of a firearm to unlawfully confine - up to 14 years for first offence
iv. S. 344(1)(a) : Robbery with a firearm -5 year minimum to life for first offence (the issue identified above)
v. S.244(2)(a): discharge a firearm with intent to wound - 5 years to 14 years for first offence
vi. S. 268: aggravated assault - up to 14 years
vii. S. 95 : possession of a loaded prohibited firearm - 3 years to 10 years for first offence
viii. S. 351(2) : having faces masked with intent to commit an indictable offence - up to 10 years
ix. S. 249.1: evade police - up to five years
[66] While the possession of a loaded firearm under s. 95 of the Criminal Code has a minimum sentence, no Defence counsel suggested that, in the circumstances of this case, the court's determination in R. v. Nur, 2013 ONCA 677 would impact on what a fit sentence is in the circumstances of this case.
[67] A home invasion robbery while occupied at the time of the offence is an aggravating factor for the purpose of sentencing. s. 348.1 of the Criminal Code provides:
348.1 If a person is convicted of an offence under section 98 or 98.1, subsection 279(2) or section 343, 346 or 348 in relation to a dwelling-house, the court imposing the sentence on the person shall 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.
[68] The Code sets out that the use of a firearm during the commission of an offence provides for a minimum punishment of 5 years imprisonment (s. 344). I am satisfied that, regardless of whether there is a minimum punishment, the circumstances of this case, a planned, home invasion robbery with a loaded firearm, during the day, when persons were known to be home, combined with the use of the firearm, the minimum punishment is of no impact to the sentence of Mr. Hylton and Mr. Dennis as any fit and proper sentence would significantly exceed five years imprisonment for the home invasion. In any event, no submission was made that this provision is not applicable in this case to Counts #1 and #4 of this case given the use of the firearm in the commission of the home invasion robbery. As for Mr. Mills, it is a much closer call given the reduced culpability of Mr. Mills in the home invasion robbery. However, for the reasons set out below, regardless of whether there is a minimum punishment, a fit and proper sentence for Mr. Mill’s involvement in the home invasion robbery exceeds five years.
THE POSITION OF THE CROWN
David Mills:
[69] The Crown submits that a fit global sentence is 6 years for Counts #4 and 7 and a 1 to 2 years sentence on Count #9 to be served consecutively for a global sentence of 7 to 8 years.
Howard Hylton:
[70] The Crown submits that a fit global sentence is 11-12 years.
Triston Dennis:
[71] The Crown submits that a fit global sentence is 10-11 years.
THE POSITION OF THE DEFENCE
David Mills:
[72] Defence submitted that a fit global sentence would be 5 years or perhaps a little more but not significantly more. As set out above, the Defence suggested that a fit sentence on the robbery, if there was no minimum, would be 4 years.
Howard Hylton:
[73] Defence submitted that a 6 year global sentence would be a fit sentence in these circumstances. However, Howard Hylton in his elocution suggested that, after pre-sentence credit, a reformatory sentence would be appropriate (essentially the same as requested on behalf of Mr. Dennis).
Triston Dennis:
[74] Defence suggested that a sentence between 5 years to 5 years 9 months would be an appropriate global sentence in these circumstances. In other words, after pre-sentence credit, at most a sentence of 2 years less a day.
CASE LAW
[75] In R. v. Wright, (2006), 2006 CanLII 40975 (ON CA), 83 O.R.(3d) 427 (C.A.) the Court of Appeal had the following highly relevant comments to make regarding sentences for home invasion robberies:
Home invasion
[13] Home invasion is a serious, and increasingly prevalent, crime in our society. For a discussion of its essential nature and the variety of circumstances "home invasion" can embrace, see R. v. S. (J.) (2006), 2006 CanLII 22101 (ON CA), 81 O.R. (3d) 511, [2006] O.J. No. 2654, 210 C.C.C. (3d) 296 (C.A.). The crime committed by Mr. Wright constitutes a home invasion because it was characterized by the invaders' forced entry into the victims' home for purposes of committing a theft or robbery, knowing that (or being reckless as to whether) the home was being occupied, and by the accompanying use or threatened use of violence with guns, together with the confinement of the occupants of the home.
[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 (S.C.J.), 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 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.
[15] For these reasons, a lengthy penitentiary term is fully warranted upon conviction for a home invasion offence: R. v. Nelson, 2001 CanLII 5235 (ON CA), [2001] O.J. No. 2585, 147 O.A.C. 358 (C.A.), at para. 15. This appeal raises the issue of the appropriate "range" of that penitentiary term, in the context of the fitness of the sentence imposed by the trial judge.
The "range" of sentence
[16] Sentencing "ranges" are useful in promoting the "parity" principle because they provide guidelines to trial judges for the [page433] imposition of similar penalties for similar offences of a similar nature involving similar offenders: see R. v. McDonnell, 1997 CanLII 389 (SCC), [1997] 1 S.C.R. 948, [1997] S.C.J. No. 42; and R. v. Stone, 1999 CanLII 688 (SCC), [1999] 2 S.C.R. 290, [1999] S.C.J. No. 27. As Finch C.J.B.C. pointed out in R. v. C. (A.J.), 2004 BCCA 268, [2004] B.C.J. No. 964, 186 C.C.C. (3d) 227 (C.A.), at para. 36, relying on R. v. Bernier, 2003 BCCA 134, [2003] B.C.J. No. 466, 177 C.C.C. (3d) 137 (C.A.), they are nothing more than guidelines and are certainly not conclusive of the appropriate sentence in any given case. Each sentencing must be conducted as an individualized exercise. This point was underscored by Moldaver J.A. in R. v. D. (D.) (2002), 2002 CanLII 44915 (ON CA), 58 O.R. (3d) 788, [2002] O.J. No. 1061, 163 C.C.C. (3d) 471 (C.A.), at para. 33:
Before going further, I wish to emphasize that the ranges which I have identified are not meant to be fixed and inflexible. On the contrary, sentencing is not an exact science and trial judges must retain the flexibility needed to do justice in individual cases. The suggested ranges are merely guidelines designed to assist trial judges in their difficult task of fashioning fit and just sentences in similar cases.
[17] In addition, as Finch C.J.B.C. also noted, "the task of arriving at appropriate ranges' of sentence for a home invasion' type crimes is particularly difficult, given the different combinations of offences that may actually be committed" (C. (A.J.), at para. 36): see also, R. v. Bernier, supra; R. v. S.(J.), supra, at para. 36; R. v. Pakoo, 2004 MBCA 157, [2004] M.J. No. 409, 198 C.C.C. (3d) 122 (C.A.).
[18] Indeed, it is the elastic nature of the home invasion offence, and the myriad of circumstances to which the label may apply, that make it difficult to define a range of sentence for such a crime. 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 the appellant contends governs such cases, and that they have done so since the decisions in Wang (2001) and Ferreira (1997), upon which that range is said to rest.
[19] In R. v. Nelson, supra (2001 -- post Wang), this court (Doherty, Rosenberg and Moldaver JJ.A.) imposed a sentence of approximately nine years' imprisonment in circumstances involving a pepper spray assault of the home invasion victim but which were otherwise not dissimilar to the present circumstances and which featured a young man with a minor criminal record as the offender. [See Note 6 below] In R. v. Soares, supra (1998), this court [page434] upheld a sentence of nine years' imprisonment imposed by the trial judge in circumstances somewhat more serious than those in the present case. In R. v. Harriott (2002), 2002 CanLII 23588 (ON CA), 58 O.R. (3d) 1, [2002] O.J. No. 387 161 C.C.C. (3d) 481 (C.A.), affd, 2003 SCC 5, [2003] 1 S.C.R. 39, [2003] S.C.J. No. 4, MacPherson J.A. (Charron J.A., concurring) sustained a penalty of the equivalent of 11 years' imprisonment (taking into account pre-trial custody) for an offence similar to that committed in Soares. Justice Nordheimer imposed a sentence of ten years' imprisonment for a home invasion involving robbery with a firearm, in R. v. D.W., [2004] O.J. No. 5825 (S.C.J.).
[20] In C. (A.J.), supra -- a home invasion case in which the perpetrators entered the home armed with (unloaded) shotguns, pepper-spray and a knife, bound the inhabitants (and gagged one of them) and threatened them in an attempt to extort $50,000 -- the British Columbia Court of Appeal reduced sentences of 14 and 16 years imprisonment to 11 and 13 years. Finch C.J.B.C. concluded that the 11- and 13-year sentences were appropriate and noted that longer sentences of 14 or 15 years were more appropriate "in the most aggravated circumstances where a home invasion' involves not only a break and enter to commit robbery, the terrorizing and confinement of victims, and the use of weapons to achieve these objectives, but also the infliction of serious injuries, sexual assault or death" (para. 41).
[21] Thus, I think it can be said that the courts -- including this one -- have moved away from the notion of a firm "range" of five to eight years' imprisonment for crimes involving home invasions. The trial judge did not err in so concluding.
[22] "Ranges" are not embedded in stone. Given their nature as guidelines only, I do not view them as being fixed in law, as is the case with binding legal principles. They may be altered deliberately, after careful consideration, by the courts. Or, they may be altered practically, as a consequence of a series of decisions made by the courts which have that effect. If a range moves by virtue of the application of individual cases over time, it is not necessary to overrule an earlier range that may once have been in vogue; it is only necessary to recognize that the courts have adapted and the guidelines have changed.
[23] The cases to which we have been referred, and which my own research has uncovered, reflect a gamut of sentencing dispositions in "home invasion" cases from as low as four or five years, [See Note 7 below] to [page435] as high as 11 to 13 years [See Note 8 below] -- with the suggestion that even higher sentences may be reserved for situations involving kidnapping, the infliction of serious injuries, sexual assault or death. Whether a "range" of that elasticity is of much assistance to trial judges in their efforts to preserve sentencing parity for similar offences involving similar offenders -- apart from signalling that a significant penitentiary jail term is generally called for -- is not clear to me. The downside of attempting to articulate a range for a type of crime that can manifest itself in such a wide variety of ways, and be committed by such a wide variety of individuals, is that the "range" becomes so broad, it is virtually meaningless. Nonetheless, to the extent there can be said to be a range in home invasion cases, it would appear that the one that currently exists is the expansive one outlined above.
[24] In my view, however, "home invasion" cases call for a particularly nuanced approach to sentencing. They require a careful examination of the circumstances of the particular case in question, of the nature and severity of the criminal acts perpetrated in the course of the home invasion and of the situation of the individual offender. Whether a case falls within the existing guidelines or range -- or, indeed, whether it may be one of those exceptional cases that falls outside the range and results in a moving of the yardsticks -- will depend upon the results of such an examination. I agree with the British Columbia Court of Appeal in C. (A.J.) (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.
[76] As a result, it appears to me that, to the extent there is a sentencing “range” for home invasion, that “range” is between 4-5 years at the lower end and 11-13 years at the upper end of the range but as in most “ranges”, careful examination of the circumstances of the offence or the offender might result in sentences outside this “range”.
[77] The Court of Appeal in R. v. Jervis, 2013 ONCA 208 at para. 6 recently stated that where the home invasion robbery was planned, violence was used and a firearm discharged, a nine year sentence was at the lower end of the range:
We have not been persuaded that this is an appropriate case to reduce the sentence. The sentence of nine years was already within the low end of the range given the planning and violence of the home invasion and the discharge of the firearm. We agree with Crown counsel that, in this case, the conditions under which the appellant must now serve his sentence are matters to be taken into account by the Parole Board and the penitentiary authorities. These offences were so serious that nothing less than a lengthy penitentiary sentence was required as a matter of general deterrence and denunciation. The use of one firearm in this manner, in midday in a residential area near a school, was outrageous behaviour. This act alone required that denunciation be the paramount consideration and overshadowed the unusual characteristics of the appellant’s present condition. That the objectives of specific deterrence and rehabilitation have been fulfilled does not justify reduction of the sentence imposed in this case.
(emphasis added)
[78] While no counsel argued the issue of parity in connection with the sentence imposed on Larry Dennis, the Ontario Court of Appeal in R. v. Mann, 2010 ONCA 342 at para. 17 stated the following:
While parity is a guiding principle of sentencing, it is not, as stated by this court in R. v. Miller (J.), (2002), 2002 CanLII 45072 (ON CA), 163 O.A.C. 63, at para. 9, to be applied in an absolute fashion: “parity is only one of a number of principles that must be taken into consideration in imposing an appropriate sentence, and it cannot in and of itself dictate the result in all cases involving similar offenders committing similar crimes”. In R. v. L.M., 2008 SCC 31, [2008] 2 S.C.R. 163, at para. 36, the Supreme Court of Canada expressed a similar view: “Owing to the very nature of an individualized sentencing process, sentences imposed for offences of the same type will not always be identical. The principle of parity does not preclude disparity where warranted by the circumstances, because of the principle of proportionality” (emphasis in original).
[79] With respect to whether the evading the police conviction should be consecutive or concurrent with the home invasion robbery convictions, the Ontario Court of Appeal in R. v. Corcho [1993] O.J. No. 98 said:
Professor R.P. Nadin-Davis was right in his work when he concluded that offences committed to facilitate flight from pursuit in respect of an earlier offence require consecutive terms and that this was particularly so for such acts as shooting or attacking the police. See Sentencing in Canada (Carswell, 1982) c. 15 p.
[80] It was agreed by all counsel that the s. 85 convictions (Count #3) for Howard Hylton and Triston Dennis are subject to the Keinapple principle. I agree. The convictions on these counts are stayed.
MITIGATING AND AGGRAVATING FACTORS
[81] This was a very serious crime that had very serious consequences to the two victims. In the circumstances of this case, the aggravating factors include:
i. this was a home invasion robbery;
ii. the robbery was well planned with surveillance the prior day and the use a rental car;
iii. a loaded firearm was brought to the home invasion robbery;
iv. the men were masked and gloved to avoid identification;
v. the robbery took place in the daytime when it was clear that persons were home;
vi. the firearm was used in the robbery to silence and confine Margaret Rose John causing long lasting psychological issues;
vii. money was taken from Margaret Rose John during the robbery;
viii. the firearm was used in the robbery to intimidate Darren John to provide drugs and money;
ix. while the firearm was not deliberately shot at Darren John (as I conclude it would not have been fired at the wall while the men were running away which is clear from the bullet going through the wall first) the firearm was discharged in the direction of Darren John to prevent or discourage Darren John from giving chase;
x. the wound caused grievous, long lasting bodily and psychological damage to Darren John; and
xi. the offenders fled the scene in a getaway vehicle, which ended in a high speed chase through a residential neighbourhood putting the public at further risk. The chase came to an end because of the crash and not because the offenders surrendered when given the first opportunity to do so.
[82] All three offenders proffered expressions of remorse.
David Mills:
[83] In Mr. Mills’ case, the aggravating factors regarding the planning of the robbery or the use of the rental car do not apply to him. There is no evidence he was involved in the planning the previous day or was a party to this intended robbery until he got into the car with the three other men earlier that morning. However, it is clear from the jury’s conviction of Mr. Mills on Count #4 that it was satisfied beyond a reasonable doubt he knew he was participating in a home invasion robbery with three other men during the daytime when it was clear that there were persons at home. The potential for serious physical and personal consequences to those at home were obvious. There would have been no doubt to Mr. Mills that the purpose the three other men going into Darren John's home that day with masks, gloves, jackets was to commit a home invasion robbery and Mr. Mills knew that, by remaining in the getaway vehicle in a nearby side street with a view of the home ready to take the other three men away, he was participating in a home invasion robbery.
[84] With respect to the possession of the firearm charge, the Crown chose to advance four theories with respect to the time of the possession of the firearm. I am not persuaded beyond a reasonable doubt that Mr. Mills had knowledge of the firearm when the three other men left the getaway vehicle to go into Darren John's home. However, I am persuaded that Mr. Mills had possession of the firearm when the three men returned from Darren John's home, drove off during which time the firearm was secreted right next to Mr. Mill's feet in the car. This is essential to the jury's verdict on Count #7. Let me be clear, the fact it hasn’t been established that Mr. Mills knew a firearm would be used prior to or during the robbery does not lessen the seriousness of Mr. Mills’ role in the home invasion robbery where three masked men, with or without other weapons, went into a residence knowing there were persons at home.
[85] Mr. Mills was not directly involved in the unlawful confinement of Margaret Rose John and was found not guilty on the charges involving the unlawful confinement either as a party to this offence.
[86] As for mitigating factors:
i. Mr. Mills is a youthful offender but this is, to some degree, offset by his prior two convictions which started in 2005 and continued in 2006, when he was approximately 18-19 years of age. Notwithstanding a lengthy conditional sentence, Mr. Mills again finds himself charged with an even more serious offence;
ii. He has a supportive family, friends and a common law spouse; and
iii. Mr. Mills has expressed remorse for his actions and provided an apology to Margaret Rose John and Darren John.
[87] It is unclear what the potential for rehabilitation is for Mr. Mills.
Howard Hylton:
[88] All of the aggravating factors listed above apply to Mr. Hylton.
[89] He was involved in the planning and carrying out of this home invasion with a gun. He was involved in the unlawful confinement of Margaret Rose John and the robbery of Darren John at gun point. Mr. Hylton was with Larry Dennis. He was the masked person who yelled "shoot him". Even on the best view of the evidence, the jury was satisfied he was a party to the intentional discharge of a firearm with the intention to wound Darren John. Howard Hylton’s actions were extremely serious. I accept the evidence of Darren John that Howard Hylton was the person who yelled to Larry Dennis "shoot him" and am so satisfied beyond a reasonable doubt.
[90] The mitigating factors for Mr. Hylton are:
i. he has no criminal record,
ii. he was somewhat youthful at the time of the offence.
iii. his family and friends remain supportive of him; and
iv. he has expressed remorse for his actions.
[91] It is unclear what the rehabilitation prospects are for Mr. Hylton.
Triston Dennis:
[92] All of the above aggravating factors apply to Triston Dennis.
[93] Triston Dennis was involved in the planning and carrying out of the home invasion robbery with a gun. Triston Dennis was the masked offender who remained downstairs with Margaret Rose John while Larry Dennis and Howard Hylton went upstairs to find Darren John.
[94] Triston Dennis is the offender who stole the money from Margaret Rose John.
[95] The mitigating factors for Mr. Dennis are:
i. he has no criminal record;
ii. he is somewhat youthful at the time of the offence;
iii. he has expressed remorse for his actions; and
iv. he has the support of his family and the community.
PRINCIPLES OF SENTENCING
[96] The applicable principles of sentencing set out in the Criminal Code are:
- The fundamental purpose of sentencing is to contribute, along with crime prevention initiatives, to respect for the law and the maintenance of a just, peaceful and safe society by imposing just sanctions that have one or more of the following objectives:
(a) to denounce unlawful conduct;
(b) to deter the offender and other persons from committing offences;
(c) to separate offenders from society, where necessary;
(d) to assist in rehabilitating offenders;
(e) to provide reparations for harm done to victims or to the community; and
(f) to promote a sense of responsibility in offenders, and acknowledgment of the harm done to victims and to the community.
718.1 A sentence must be proportionate to the gravity of the offence and the degree of responsibility of the offender.
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,
(iii.1) evidence that the offence had a significant impact on the victim, considering their age and other personal circumstances, including their health and financial situation,
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;
[97] I note that none of the offender's counsel made a submission with respect to parity of sentences between the offenders including Larry Dennis. Larry Dennis was the person who carried the firearm during this home invasion robbery and used it. He pled guilty and agreed to testify against these offenders. While Larry Dennis was sentenced to 7 1/2 years, this has little impact on the sentencing in this case given the two highly significant mitigating factors - the plea and agreement to testify against the other perpetrators. I also accept that Darren John did not provide details of what had occurred at his home at the preliminary hearing because he had fears for his life. Larry Dennis’ plea was taken before Darren John gave his complete evidence. I agree with the Crown that some of the facts, which subsequently became available when Darren John finally cooperated with the police in the investigation, is a further factor which might have affected the apparent lenient sentence imposed on Larry Dennis.
[98] There can be no doubt that the most significant principles in sentencing offenders for home invasion robberies with firearms is deterrence (general and specific) and denunciation. That is the reason the general range set out in Wright: "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." (see para 24)
[99] Given the multiple convictions, after determining the sentences for each conviction and determining whether the sentences are concurrent or consecutive, before imposing the sentences, this court must consider whether the totality of the sentence results in a sentence which is "unduly long or harsh" - Criminal Code s. 718.2(c).
REASONS
David Mills
[100] The first issue to be considered is whether the conviction under s. 344 of the Criminal Code results in a minimum 5 year sentence for Mr. Mills. In my view, it is not necessary to determine this issue in this case. In the circumstances of this offence and the offender, I am not persuaded that a minimum sentence would have any impact on what constitutes a fit and proper sentence for Mr. Mills.
[101] Mr. Mills was a voluntary and willing participant in the robbery of Darren John.
[102] Mr. Mills played a significant role in the home invasion robbery in broad daylight with his three masked accomplices. He knew they were going to commit the robbery knowing there were persons at home and that some form of persuasion or force would undoubtedly have to be used to carry out the robbery. Force was in fact used and its consequences on the victims were devastating and long lasting. Mr. Mills was prepared to assist his accomplices to carry out the robbery by waiting outside with the getaway vehicle and assist his accomplices escape.
[103] When the accomplices came out of Darren John’s home masked and running, Mr. Mills did help them to escape. In doing so, he placed the safety of the public at risk in a high speed chase down a residential area in an attempt to avoid capture by the police.
[104] While Mr. Mills is the most youthful of the offenders before this court, I am not persuaded that his sentence should be reduced to take this youthfulness into account given his prior convictions, sentences and the seriousness of the offences for which he has been convicted.
[105] While rehabilitation is always a factor which must be considered, I am not persuaded that there are compelling reasons to believe rehabilitation is a significant factor in this case.
[106] The gravity of the offence, a home invasion robbery, would require a significant to lengthy penitentiary sentence, but taking into account the reduced degree of culpability of Mr. Mills, the sentence on Count #4 should be closer to the lower end of the range. In my view, without consideration of a minimum sentence for the home invasion robbery of Darren John, a fit and proper sentence for Mr. Mills in all the circumstances would be 6 years.
[107] The Crown concedes that the sentence on Count 4 and 7 should be concurrent.
[108] As for Count #7, possession of the loaded firearm after the three other offenders had just returned from a home invasion robbery remains a very serious offence.
[109] Defence suggests that I should conclude David Mills wanted to abide by the police attempt to pull the getaway vehicle over and surrender. The Defence submits that Mr. Mills did immediately pull over when he saw the police on Eglinton Avenue. Defence submits that I should accept that David Mills was threatened by Larry Dennis to "take off". The Defence suggests that the jury rejected the defence of duress but may have done so on a different basis rather than rejecting what the Defence now submits. I am not prepared to make a finding of fact as suggested by the Defence. Whether the firearm was secreted behind the panel in the front wheel well area (Larry Dennis was in the back) before or after the first police stop is not clear from the evidence. One might infer that the vehicle would not have pulled over the first time if the firearm had not already been hidden. One might conclude that Mr. Mills had other options available to him rather than "take off" again in the getaway vehicle in a dangerous high speed police pursuit chase down a residential area. The onus is on the Defence to establish that Larry Dennis threatened Mr. Mills to "take off" on a balance of probabilities if it is to be a mitigating factor. The Defence has not done so.
[110] Defence submits that the evading conviction not be consecutive to the other counts. The general rule is that different offences that arise out of the same behaviour normally receive concurrent sentences. Consecutive sentences, on the other hand, are normally imposed where there is some separation among the offences in time or they constitute different legally protected interests: R. v. Houle, 2008 ONCA 287, [2008] O.J. No. 1412 (C.A.). In this case there was a police stop. That could have been and should have been the end of the attempted evasion by the offenders. Mr. Mills could have gotten out of the vehicle, which would have avoided the subsequent chase, and he didn't do so. With two police cruisers and police with guns drawn, the defence suggestion that Mr. Mills was fearful he might be shot by his accomplices if he didn't take off is entirely conjecture. What is clear is that the actions of Mr. Mills created a new and additional risk to the public through the evasion of the police in a high speed chase. In these circumstances, there is a separation among the offences in time and the different interests sought to be protected. Applying Corcho, supra, the sentence on Count 9 (evading the police) shall be consecutive to the sentence on the other counts.
[111] As for David Mills’ actions regarding the high speed pursuit through a residential area, this is a serious crime which deserved a period of incarceration. He had an opportunity to avoid this during the first stop and chose not to.
[112] I am satisfied that a fit sentence in the circumstances of this case, taking into account Mr. Mills culpability and his personal circumstances is:
i. 6 years for the robbery (Count #4);
ii. 3 years for the possession of a loaded firearm (Count #7) concurrent to Count #4; and
iii. 1 years for the police evasion (Count 9) consecutive to Counts #4 and #7
[113] I am not persuaded that this total sentence of 7 years is unduly hard or long in the circumstances.
Howard Hylton
[114] The Crown concedes that Count #3 should be stayed on the Keinapple principle. See R. v. Rochleleau, 2013 ONCA 679.
[115] The significant difference between Howard Hylton and Triston Dennis is that the jury found Howard Hylton guilty of Count #5 – discharge of a firearm with the intent to wound Darren John.
[116] Howard Hylton was deeply and completely involved in the preparation and execution of this home invasions robbery. Howard Hylton was involved in the surveillance on the prior day. He knew there was a loaded firearm being used during the home invasion robbery. He was present during the unlawful confinement and the threatening use of the firearm. He was present during the attempt to rob Darren John with the threat of a loaded firearm. He was the one who yelled "shoot him" when Darren John didn't disclose where the drugs or money were. Essential to the jury’s verdict, the jury accepted that it was Howard Hylton who went upstairs with Larry Dennis and was a party to Larry Dennis’ intention to wound Darren John with the firearm.
[117] I do not accept Defence counsel's submission that Howard Hylton's culpability in the offences should result in a sentence at the lower end of the range for home invasion robbery.
[118] Counsel suggests that rehabilitation is a significant factor for this court to consider. I agree that rehabilitation is a factor this court must consider. While Mr. Hylton had a difficult upbringing, the most significant factor which suggests rehabilitation is a possibility is that he has no prior criminal record. He had prior involvement with church and youth activities, yet these activities did not prevent his very significant involvement in this highly planned home invasion.
[119] While this is Mr. Hylton’s first conviction and he is somewhat youthful and this will the first time he will be incarcerated, I am not persuaded that the principle of tempering is applicable given the planning, the seriousness and the consequences of the crimes committed.
[120] In my view, considering all of the circumstances of the offence and Mr. Hylton, a sentence should be closer to the higher end of the range for a home invasion robbery.
[121] Given that all the offences which gave rise to the convictions all occurred during the home invasion robbery, the sentences should be concurrent.
[122] Let me deal first with the sentence for the offences relating to Margaret Rose John:
i. Count #1: 8 years
ii. Count #2: 5 years concurrent to Count #1
[123] With respect to the sentences for the offences relating to Darren John:
i. Count #4: 10 years
ii. Count #5: 10 years concurrent with Count #4
iii. Count #6: 8 years concurrent with Counts #4 and #5
iv. Count #7: 5 years concurrent with Counts #4, #5, #6 and #7.
[124] With respect to Count #8, I impose a sentence of 2 years to be served concurrently with the sentences on Count #1, 2, 4, 5, 6 and 7.
[125] As a result, a global sentence of 10 years is a fit sentence which is, in my view, not unduly harsh or long given the circumstances of the crimes which Mr. Hylton committed and his personal circumstances.
Triston Dennis
[126] The Crown concedes that Count #3 should be stayed on the Keinapple principle. See R. v. Rochleleau, 2013 ONCA 679.
[127] Triston Dennis' involvement is similar to that of Howard Hylton. Triston Dennis supplied the rental vehicle for the robbery. Triston Dennis did not go upstairs and did not encourage the discharge of the firearm as did Howard Hylton but he knew that the other two offenders had a loaded firearm and were going upstairs to find Darren John.
[128] I accept that Triston Dennis is remorseful for what he did. It may be that he was influenced to participate in the offences including his older brother, Larry Dennis, who had disparaging things to say about his brother's willingness to participate in criminal activity - and this did not appear to be an attempt by Larry Dennis to help his brother.
[129] As for Triston Dennis' potential for rehabilitation, I am persuaded that there is some prospect of rehabilitation.
[130] In my view, the culpability of Triston Dennis in the offences and his personal circumstances warrant a lower global sentence that Howard Hylton but more than David Mills, the getaway driver.
[131] For the same reasons as Mr. Hylton, I am not persuaded that the principle of tempering for youthful or first the first time incarceration is of significance in this sentencing.
[132] Given that all the offences which gave rise to the convictions all occurred during the home invasion robbery, the sentences should be concurrent.
[133] The Crown concedes that Count #7 should be stayed on the Keinapple principle. See R. v. Rochleleau, 2013 ONCA 679.
[134] Let me deal first with the sentences for the offences relating to Margaret Rose John:
i. Count #1: 8 years
ii. Count #2: 8 years concurrent to Count #1
[135] With respect to the sentences for the offences relating to Darren John:
i. Count #4: 8 1/2 years
ii. Count #6: 5 years concurrent with Count # 4
iii. Count #7: 5 years concurrent with Counts # 4, and 6
[136] With respect to Count #8, I impose a sentence of 2 years to be served concurrently with the sentences on Count #1, #2, 4, 6 and 7.
[137] As a result, a global sentence of 8 1/2 years is a fit sentence which is, in my view, not unduly harsh or long given the circumstances of the crimes which Mr. Hylton committed and his personal circumstances.
PRE-SENTENCE CUSTODY
[138] These offenders have been in custody since August 24, 2011 - essentially 2 years and 7 months.
[139] Evidence at the Sentencing hearing is that these offenders have had no discipline issues, have been subject to numerous full and partial lockdowns and have accessed the programs available to them. All of them have been on good behaviour during their incarceration.
[140] Each of the offenders seeks enhanced pre-sentence credit.
[141] The Crown accepts that there should be enhanced pre-sentence credit but submits that it should be somewhere between 1:1 and 1:1.5.
[142] Having considered the factors annunciated in R. v. Summers, 2013 ONCA 147 and the evidence at the pre-sentence hearing, I am satisfied that enhanced credit of approximately 1:1.5 is appropriate in the circumstances of this case.
[143] As a result, each of the offenders shall be credited 46 months for pre-sentence custody.
[144] Mr. Mills shall be credited 46 months for pre-sentence custody applied to Count #4 and Count #7.
[145] Howard Hylton shall be credited 46 months for pre-sentence custody.
[146] Triston Dennis shall be credited 46 months for pre-sentence custody.
ANCILLARY ORDERS
[147] A lifetime weapons prohibition and a DNA order are ancillary orders appropriate in this case. No submissions were made by the defence to suggest that such orders should not be made.
FINAL DECISION
David Mills
[148] In conclusion, after credit for pre-sentence custody, Mr. Mills is sentenced as follows:
i. 26 months on Count #4;
ii. time served on Count #7; and
iii. 12 months on Count #9 consecutive to Count #4;
iv. A s. 109 prohibition order for life; and
v. A s. 487.051 DNA order for the taking of a DNA sample.
Howard Hylton
[149] In conclusion, after credit for pre-sentence custody, Mr. Hylton is sentenced as follows:
i. 74 months on Counts #4 and #5;
ii. 50 months on Counts #1 and #6;
iii. 14 months on Count #2 and 7;
(i), (ii) and (iii) to be served concurrently
iv. time served on Count #8;
v. A s. 109 prohibition order for life; and
vi. A s. 487.051 DNA order for the taking of a DNA sample.
Triston Dennis
[150] In conclusion, after credit for pre-sentence custody, Mr. Dennis is sentenced as follows:
i. 50 months on Counts #1 and #2;
ii. 56 months on Counts #4
iii. 14 months on Counts # 6 and 7;
(i), (ii), and (iii) to be served concurrently
iv. time served on Count #8; and
v. A s. 109 prohibition order for life; and
vi. A s. 487.051 DNA order for the taking of a DNA sample.
L. Ricchetti J.
Released: April 1, 2014
COURT FILE: CrimJ 2043/12
DATE: 2014-04-01
ONTARIO
SUPERIOR COURT OF JUSTICE
B E T W E E N:
HER MAJESTY THE QUEEN
- and –
David MILLS, Howard HYLTON and Triston DENNIS
Defendant
REASONS FOR SENTENCE
L. Ricchetti J.
Released: April 01, 2014