ONTARIO

SUPERIOR COURT OF JUSTICE

COURT FILE NO.: 13-249

DATE: December 8, 2014

B E T W E E N:

HER MAJESTY THE QUEEN

Brian Holowka for Her Majesty the Queen

• and -

JOSHUA SPENCE

James Harbic, for the Accused

Accused

HEARD: August 25, 2014

DECISION ON SENTENCING

James, J.—(Orally)

Introduction

1On May 28, 2014 Mr. Spence entered a plea of guilty to the charge of unlawful confinement and to the charge of break and enter to a dwelling house with intent to commit an indictable offence. The case was adjourned to August 25, 2014 at which time the court received sentencing submissions from both Crown and defence counsel and put over to today for disposition.

Facts

2The circumstances of the offence are that Mr. Spence and two others made a plan to break into the home of the victim to steal money and other valuables. Mr. Spence and the co-accused Justin Walker broke into the basement of the house around midnight on February 18, 2013 while a third person, Donald Vaillancourt waited outside in a vehicle owned by Mr. Spence’s mother. Prior to breaking into the victim’s home, they stopped at the Walker residence and Mr. Walker collected gloves, hat and a black bandana. They were also equipped with a large knife described as a machete, which they used to pry open a basement window. When they entered the victim’s home, the victim was still up and talking on the telephone. She heard her dog growling. She went to the rear patio door of her residence then heard Walker and Spence running upstairs from the basement. They entered the room wearing masks. One or both of them yelled “this is a home invasion”. The victim was pushed to the floor. When she attempted to get up she was pushed down again. The victim, who lives alone and was 76 years old at the time of this attack, was bound with electrical cord, both hands and feet while lying on the floor. They kept asking her for the location of cash and cheques. One of the men held up the machete to the victim and stated he would kill her. They were in the victim’s home for 15 to 20 minutes. They took a large quantity of miscellaneous jewellery and other valuables as well as $800 cash. The victim suffered several abrasions from the rough treatment she received at the hands of her assailants. The agreed statement of facts indicates that Mr. Spence was heavily intoxicated the evening of the offence. Prior to breaking into the victim’s home, the assailants consumed about a gram of cocaine. Mr. Spence indicated he was prepared to plead guilty at the end of his preliminary inquiry.

3The offender in this case is about 23 years of age. In 2009 he was convicted of theft under $5000 and sentenced to a two month conditional sentence and probation for twelve months. Mr. Spence has three siblings. His parents separated when he was about seven years old. While growing up he moved back and forth between parents. At about age 14 Mr. Spence began consuming alcohol and smoking marijuana. By grade 10 he was using drugs extensively and exhibiting behavioural issues at school. At one point he was expelled for selling drugs on school property. He spent some time at an alternate school where his grandfather was a teacher. He withdrew from school and began selling drugs to support himself. At one point he attended a treatment program after a family intervention but did not complete the program.

4When Mr. Spence was 20 years of age, his 16 year old girlfriend became pregnant. He attempted to curb his drug use and went on methadone for a year and a half. He obtained full time employment but eventually lost this job. His daughter was born in 2012 and is in the care of her mother.

5As a condition of his release following his arrest for the commission of these crimes Mr. Spence has been a resident of Harvest House in Ottawa since March 2013.

6Although Mr. Spence previously graduated from grade 12 in 2008 he obtained a high school equivalency diploma while at Harvest House.

7Mr. Spence’s participation in the Harvest House program has been positive. He has been subjected to random drug testing with negative results. He has participated in making presentations to high school students. He has made substantial progress in accepting responsibility for his drug use and anti-social behaviour. He has participated in in-house volunteer work including fundraising (for a total of 1260 hours of telephone sales from May 2013 to June 2014 and 864 hours of staff on duty work in mentoring from October 2013 to June 2014). He completed a 12-week anger management program earlier this year and participates in the 12-step Alcoholics Anonymous program. It appears that Mr. Spence’s grandfather has played an important role in assisting Mr. Spence as he progresses through his recovery. Mr. Wand of Harvest House reports that Mr. Spence has made significant efforts in recovery tasks and has demonstrated a change in attitude and genuine remorse for his past conduct. He provides a nominal amount of child support and maintains contact with his daughter and her mother. His future goals include maintaining sobriety, becoming an apprentice, regular AA attendance, increasing his child support payments and continuing his affiliation with Harvest House. He has written a letter of apology to the victim.

Legal Parameters

8The offence of forcible confinement provides for a 10 year maximum sentence. Break and enter to a dwelling house with intent to commit an indictable offence has a maximum penalty of life imprisonment. Neither of these offences has a specified minimum sentence.

Position of the Crown

9Crown counsel says that the case authorities indicate that an appropriate range for home invasion cases is from a low of 4 to 5 years to as high as 11 to 13 years. The higher sentences are reserved for situations involving kidnapping, the infliction of serious injuries, sexual assault or death. The sentencing range was previously said to be approximately 5 to 8 years but this guideline has been adjusted and broadened in more recent years.

10In this case Crown counsel submits that a sentence at the low end of the range, imprisonment for 4 years, would be appropriate, subject to the usual credit for pretrial custody following Mr. Spence’s arrest as well as some credit for the time Mr. Spence has resided at Harvest House since he was released. Crown counsel suggests that the credit for participation in a residential treatment program such as Harvest House for sentencing purposes ought to fall within a range from .5:1 at the low end and 1:1 at the high end.

Position of the Defence

11Mr. Harbic on behalf of Mr. Spence submits that a period of incarceration of 12 to 18 months would be appropriate for this offender and these offences. There was some discussion at the sentencing hearing respecting the availability and appropriateness of a conditional sentence to be served in the community but recent revisions to the Criminal Code have removed the availability of a conditional sentence for these crimes.

12In addition, Mr. Harbic agrees that Mr. Spence should be credited at the rate of 1.5:1 for each of his 30 days of incarceration prior to receiving bail and says he should be credited at the rate of at least one to one for the time spent at Harvest House where Mr. Spence has been living since the end of March, 2013.

13Defence counsel points to R. v. Walsh where participation at Harvest House was granted a credit of 1.6 to one.

Mitigating and Aggravating Factors

14The task of fashioning an appropriate sentence involves a consideration of whether the sentence should be increased or reduced to account for any relevant aggravating and mitigating circumstances relating to the offence or the offender.

15The circumstances of these offences disclose the following aggravating factors:

1. The robbery was planned and deliberate. The fact that Spence and Walker had disguises demonstrates that they thought that they might encounter someone while in the home.

They tied the victim’s hands and feet with electrical cord. Here, the victim was home alone. She was 76 years old. The victim did not present a serious threat to the offenders and Crown counsel characterizes the fact that she was bound as gratuitous violence.

2. The Victim Impact Statement discloses that this crime had a significant impact on the victim. Her statement is an eloquent testament to the fear, suffering and sense of violation and loss that is often associated with this type of crime.

3. Crown counsel points to the fact that the offenders took steps to cover their tracks and dispose of evidence that they had taken from the victim’s home. They threatened the victim with death if she did not cooperate. There was a reference to a gun. Mr. Spence appears to have been the person carrying the knife.

16There are also several mitigating circumstances which are present. They are as follows:

1. Mr. Spence does not have a significant criminal record.

2. He is relatively young and his participation in Harvest House programs shows that he is a good candidate for rehabilitation.

3. He has been able to stay drug and alcohol free.

4. He has demonstrated a desire to continue to play a role in the life of his young child.

5. He has shown remorse and has provided the victim with an articulate and thoughtful letter of apology.

6. He entered a plea of guilt following the preliminary inquiry.

7. Mr. Harbic also submitted that Mr. Spence was a reluctant participant in this home invasion and this was a mitigating factor as well. On this point I would offer the observation that while the others may have had to talk Mr. Spence into going along with the plan, any initial reluctance on his part was not apparent in how he conducted himself in the victim’s home.

Principles of Sentencing

17The Criminal Code of Canada states that the fundamental purpose of sentencing is to contribute to respect for the law and the maintenance of a just, peaceful and safe society by imposing just sanctions that have the following objectives:

a. to denounce unlawful conduct;

b. to deter the offender and others from committing crimes;

c. to separate offenders from society where necessary;

d. to assist in rehabilitating offenders;

e. to promote reparations for the harm done to victims; and

f. to promote a sense of responsibility in offenders and an acknowledgement of the harm done to victims and to the community.

18A sentence must be proportionate to the gravity of the offence and the degree of responsibility of the offender.

19In cases involving forced entry, late at night, into the home of an elderly woman who lives alone for the purpose of robbing her, the paramount objectives of any sentence which is imposed ought to be to denounce the reprehensible nature of this kind of crime and to provide a substantial deterrent effect in order to protect the vulnerable members of our community.

20I recognize as well that the sentencing process is not just about punishment. The offender in this case is relatively young. He has made positive steps in turning his life around. He has demonstrated an ability to remain drug and alcohol free. While this is more easily accomplished when living in a facility such as Harvest House with supervision and random drug tests, the building blocks of a successful rehabilitation are taking shape. He has demonstrated a desire to go above and beyond the requirements of his treatment program.

21While denunciation and deterrence are important principles of sentencing, at some point Mr. Spence is going to be released and will resume life in the community. An appropriate disposition needs to serve the objective of having Mr. Spence re-join society as a productive, healthy and socially-responsible citizen.

Case Law

22Both Crown and defence counsel have provided the court with numerous case authorities in support of their respective positions. The point is often made that no two cases are identical. The commentary in the cases, and the sentencing ranges that they refer to, are only guidelines. I will refer to some of them.

23The decision of our Court of Appeal in the Wright case in 2006 refers to home invasions as a serious and increasingly prevalent crime in our society. While home invasions can take different forms and include a variety of circumstances, they are characterized by a forced entry into the victim’s home for the purposes of committing theft or robbery, and by the accompanying use or threatened use of violence together with the confinement of the occupants. All those elements are present in this case. Justice Blair in the Wright case referred with approval to the observation that “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. These are highly cherished values in our society—and because they are frequently perpetrated against vulnerable individuals they must be dealt with sternly be the courts”.

24He went on to say that sentencing dispositions in home invasion cases reflect a gamut from a low of 4 to 5 years to as high as 11 to 13 year and that home invasion cases call for a particularly nuanced approach to sentencing. He concluded that generally a stiff penitentiary sentence is called for.

25In the more recent case of R v. Walsh, decided in 2011, our Court of Appeal referred to the normal range for a home invasion as starting at 5 years and up.

26Mr. Harbic referred to several cases where the penalty for home invasion type offences were substantially less that the range referred to by Justice Blair in the Wright case. In many instances, the facts were distinguishable from Mr. Spence’s situation. Several of them dealt with aboriginal offenders where special sentencing considerations come into play. In another, the offender was an aider rather than a direct participant in the robbery.

27One of the cases referred to by Mr. Harbic was the 2010 case of R. v. May and Whalen, where the offenders were aged 19 and 21 years respectively. They were under strict bail conditions for about a year and a half before they pleaded guilty. One of them entered the home for the purpose of robbery, the other drove the getaway car. A third robber was shot and killed by a gun belonging to one of the victims. The Court of Appeal, in choosing not to increase the sentence by the trial judge of just under two years’ incarceration, commented that other trial judges might well have come down with a different sentence. I take this comment to mean that the sentence was significantly below the usual range. It appears one of the victims was involved in the drug trade. There was no evidence of particular harm suffered by the victims and no victim impact statements were filed at the sentencing hearing. Both offenders had made significant strides towards rehabilitation. In the particular facts of that case, the Court of Appeal was not prepared to say that the sentence imposed by the trial judge was manifestly unreasonable.

28In my view, the case before the court today has significant differences than the case I have just described. Certainly the character of the victim and the impact this crime had upon her are not similar.

29I would like to make a few comments about whether some credit ought to be given for Mr. Spence’s time at Harvest House. I start with the observation that there is a significant difference between pretrial incarceration and pretrial residency at a treatment facility. They do not attract the same considerations when determining what credit, if any, ought to be permitted. In the Walsh case I referred to a moment ago, the trial judge gave a credit of 1.6 to 1 for time spent at the same facility as we are dealing with here. The Court of Appeal said that a credit at that rate was not appropriate and constituted an error in principle. While acknowledging that some credit may be given, it is not supposed to be given automatically. The court also referred to the appeal decision in the Fobister case where a 1 for 1 credit was held to be excessive.

30In my view the program offered at Harvest House is a commendable one and Mr. Spence’s successful participation in it is deserving of some credit in reduction of the amount of time Mr. Spence would otherwise spend in prison. I am going to grant a credit equal to approximately one half of the time Mr. Spence has been there.

31Mr. Spence, will you stand up?

32Having considered the circumstances of the offences that you committed, the seriousness of the crimes and the impact that your crimes had on the victim, a penitentiary sentence is warranted. At the same time I recognize the progress that you have made while living at Harvest House and your efforts at rehabilitation.

33Accordingly, I sentence you to a period of incarceration of 3 years which takes effect from today. This disposition reflects a credit totaling one year, which is made up of both your detention prior to obtaining bail and your successful participation in the treatment program at Harvest House and its Outreach activities. Your pre-trial detention is granted a credit of 1.5 to one for a total of 45 days and the balance of the 365 day credit relates to the slightly more than 20 months you have resided at Harvest House. The overall global sentence is therefore 4 years, which is at the low end of the guidance provided by our Court of Appeal for this type of crime, less the credit for time served and for participation in the Harvest House residential treatment program.

Ancillary Orders

34There will be a 10 year weapons ban under section 109 of the Criminal Code.

35There will be a non-communication order during the period of the custodial order under section 743.21 in relation to Catherine Jordan.

36Finally, unlawful confinement is a primary designated offence under the DNA provisions of the Code. An order requiring Mr. Spence to provide a sample of his DNA is mandatory unless the court is satisfied that the requirement to provide a sample would be grossly disproportionate to the public interest.