ONTARIO
SUPERIOR COURT OF JUSTICE
COURT FILE NO.: CR-14-10000056-0000
DATE: 20150630
BETWEEN:
HER MAJESTY THE QUEEN
– and –
RUSSELL BULLOCK
Accused
Michael MacDonald, for the Crown
Benjamin Moss, for the Accused
HEARD: June 8, 2015
REASONS FOR SENTENCE
A.J. O’MARRA J.:
[1] Russell Bullock was found guilty after trial for his participation in a home invasion robbery in which the victim, Richard Kruk was shot in the back with a shotgun by one of the three armed robbers as he tried to flee his confinement. He survived.
[2] On March 19, 2013 three armed men, one of whom was Russell Bullock entered the apartment of Richard Kruk where he was staying with his girlfriend for the purpose of robbing him of drugs and money. Mr. Bullock was found guilty of the following 12 offences:
(1) armed robbery, s.344;
(2) aggravated assault endangering life, s.268;
(3) assault with a weapon, to wit a firearm, s.267(a);
(4) discharge a firearm with intent to endanger life, s.244(b);
(5) unlawful confinement of Richard Kruk, s.279(2);
(6) unlawful possession of a loaded sawed off shotgun, s.95(1);
(7) unlawful possession of a loaded handgun, s.95(1);
(8) possession of an unauthorized sawed off shotgun, s.92(1);
(9) possession of an unauthorized handgun contrary to s.92(1);
(10) unlawful possession of a sawed off shotgun, s.91(1)
(11) unauthorized possession of a handgun, s.91(1); and
(12) possession of a firearm contrary to a prohibition order, s.117.01 of the Criminal Code.
Circumstances of the Offences
[3] Mr. Richard Kruk testified that he was staying at his girlfriend’s apartment at 3107 – 299 Glenlake Avenue on March 19, 2013 when three armed men entered through the unlocked front door of the apartment. Two of the men were black males with handguns and the third he described initially to police as being Hispanic, then later as Middle Eastern looking, holding a sawed off shotgun. They all yelled at him to tell him where his safe was located. He was forced to kneel on the floor with his hands behind his head. He was kicked and gun-butted in the head.
[4] One of the black men, larger than the other black man, left to go to the safe located in a bedroom closet. The other two assailants stayed by the front door with their guns trained on him. When the man returned angry that he could not access the safe, Mr. Kruk said he saw the opportunity to push by the man with the shotgun and run into the hallway. Just as he passed through the door he heard two shots. He was shot in the back and collapsed in the hallway. One of the other assailants discharged his handgun, missing Mr. Kruk but passing through a neighbouring apartment door, the bullet being lodged in the neighbour’s living room couch. The assailants fled the apartment.
[5] Mr. Kruk staggered down the hallway hitting on various doors and calling out for help. Finally, he collapsed outside of an apartment at the other end of the hallway. A number of the residents on hearing the gunshots and Mr. Kruk’s calls for help called 911.
[6] Mr. Kruk was found collapsed and bleeding profusely outside of the apartment at the end of the hallway. He was rushed to the hospital for emergency surgery to save his life.
[7] The three assailants fled the scene in a motor vehicle driven by Mohamad Taha, who testified on the trial. He identified Russell Bullock as one of the three men driven to and away from the robbery. Mr. Bullock is fair skinned, whereas the other two identified by the driver of the vehicle used to flee the scene are black. However, in terms of Mr. Bullock’s specific role in the home invasion and shooting of Mr. Kruk, in my Reasons for Judgment set out at 2015 ONSC 2453, at paras. 74-84 I was unable to conclude beyond a reasonable doubt that Mr. Bullock was the principal offender who shot Mr. Kruk. However, he was found to be one of the three armed assailants and a party under s.21 to the armed robbery, aggravated assault, assault with a weapon and discharge of firearm endangering life in the commission of the home invasion and the ancillary possession of firearm offences.
Victim Impact Statement
[8] Mr. Kruk in a Victim Impact Statement indicated that his life changed drastically as a result of the shooting. Prior to being shot, Mr. Kruk had been a mixed martial arts fighter and instructor. During the operation to save his life half of his lung was removed and he still carries 40 shotgun pellets in his upper left chest cavity close to his heart and spine. In the Victim Impact Statement he stated the following:
I had quite a struggle to regain enough strength to leave the hospital which included a near collapsed lung and multiple infections, extreme pain, discomfort, stress for myself, my family and friends. It took several weeks of treatment in intensive care to finally leave the hospital. I was then bedridden basically for another two months.
[9] He indicated that he lost his dream and goal for which he worked over 20 years of being able to compete as a professional fighter and martial artist. He complains of chronic pain and post-traumatic stress disorder, he suffers high blood pressure and depression.
Circumstances of the Offender
[10] Russell Bullock was 19 at the time of the offence, born August 28, 1993. He is now 21 years of age.
[11] Mr. Bullock was an only child whose parents separated when he was an early age. He was raised by his mother who worked at a retirement centre. He only saw his father approximately once per year. He passed away September 17, 2013.
[12] He has a youth record imposed when he was 17, on March 9, 2012 for possession of a Schedule 1 substance, discharge of firearm with intent, unauthorized possession of a firearm, and aggravated assault for which he received the equivalent of 18 months secure custody sentence followed by a community supervision order for 3 months, 12 months’ probation and a mandatory firearms prohibition, extant at the time of the commission of the home invasion robbery.
[13] While in custody at the Roy McMurtry Youth Centre he was able to complete his high school credits.
[14] Counsel advised that Mr. Bullock has never been employed.
Position of the Parties
[15] The Crown seeks a global sentence of 12 years’ incarceration, 10 years for the aggravated assault and armed robbery to be served concurrently, as well as concurrent sentences for the other offences, and 2 years consecutive for the breach of the firearms prohibition order. In addition, the Crown seeks a lifetime prohibition order under s.109 of the Criminal Code and a DNA order under s.487.051 (1) of the Criminal Code.
[16] The defence agrees that the sentences for the offences involving the home invasion, the most serious of which is the aggravated assault, should be concurrent but that a consecutive sentence for the breach of the prohibition order should be consecutive. Defence counsel suggests that the sentence for the home invasion/aggravated assault should be in the range of 6 to 7 years with an additional sentence of 6 to 12 months for the breach of the firearms prohibition order.
Sentencing Principles
[17] Section 718 of the Criminal Code directs that I impose a just sanction with regard for the objectives set out in the provision, including denunciation, deterrence, rehabilitation and the promotion of a sense of responsibility in offenders.
[18] Appellate Courts have indicated that the objectives of general deterrence and denunciation be given priority in cases of home invasion with consideration to the prospects of an offender’s rehabilitation. All home invasion robberies are serious crimes and will usually merit significant penitentiary sentences.
[19] Home invasions are a violation of the sanctity of the home and the sense of security to which people are entitled. As Trafford J. stated in R. v. Soares, [1996] O.J. No. 5488 (SCJ) at para. 286, aff’d, [1998] O.J. No. 3275 (CA):
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 its 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.
[20] I consider as well the comments made by Armstrong J.A. in R. v. Danvers, 2005 30044 (ON CA), [2005] O.J. No. 3532 (CA), at paras. 77-78 for courts to impose exemplary sentences in cases involving gun crimes:
Only the imposition of exemplary sentences will serve to deter criminals from arming themselves with handguns….
There is no question that our courts have to address the principles of denunciation and deterrence for gun related crimes in the strongest possible terms. The possession and use of illegal handguns in the Greater Toronto area is a cause for major concern in the community and must be addressed.
[21] Each sentence imposed, of course, requires the careful examination of the circumstances of the particular case, the nature and severity of the criminal acts perpetrated in the course of the home invasion and of the individual offender’s situation. (See: R. v. Wright 2006 40975 (ON CA), [2006] O.J. No. 4870 (O.A.C.) para. 24).
[22] Both counsel have proffered an array of sentencing cases that have involved home invasion scenarios and/or use of firearm offences. The range of incarceration is generally between 7 and 14 years depending on the severity of the offences, (See R. v. Wright supra at paras. 19-24, R. v. D.W., [2004] O.J. No. 5825 (S.C.J.) at para. 11, and R. v. Renwick, 2014 ONCA 787).
[23] In R. v. A.J.C. (2004), 2004 BCCA 268, 186 C.C.C. (3d) 227 (B.C.C.A.) cited in R. v. Wright supra, a case in which the perpetrators entered the home armed with unloaded shotguns, pepper spray, a knife, bound the occupants and threatened them to extort $50,000, the B.C.C.A. concluded in that instance, sentences of 11 and 13 years were appropriate. However, Finch C.J.B.C. also noted that longer sentences of 14 or 15 years were 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 infliction of serious injuries, sexual assault or death”.
[24] In R. v. D.W the offender, 24 and two other armed with handguns confined the male victim, his girlfriend, mother and three children, demanding jewelry, money and drugs. He threatened to kill the male victim, in a manner placing his children’s lives at risk. He repeatedly beat the male victim with his gun and other objects. He was found to be the ringleader of the home invasion. He had a criminal record involving aggravated assault and assault with a weapon. On pleading guilty the court sentenced the offender to 10 years imprisonment for the robbery with a firearm, for uttering a threat 4 years concurrent and time served (the equivalent of 2 years for pre-trial custody) for unlawful confinement.
[25] In R. v. Wright the offender with four others armed with handguns and disguised forced their way into the home of a small business owner, confined him, his wife, three children, nanny. They threatened to hurt them if he did not give them the correct information to access his business safe. The offender pleaded guilty and offered the court an expression of sincere remorse and willingness to take responsibility for his actions. Court of Appeal upheld a sentence of 8 years as wholly appropriate.
[26] In a more recent case, R. v. Renwick, the Court of Appeal upheld a global sentence of 14 years imposed following trial. The offender received a sentence of 12 years for the home invasion offences and 2 years consecutive for an AK 47 firearm found in the attic of his home. The offender, 21 used a loaded firearm during home invasion to terrorize and beat members of a family. He held a loaded gun to the head of the 10 year old daughter, threatened to kill her, dragged the 8 year old son down the stairs by his hair and beat him, discharged the gun and beat and dragged the complainant back into the home when he tried to escape.
Aggravating and Mitigating Factors
[27] There are a number of aggravating factors to be considered. Firstly, the offence involves a home invasion, a violation of the sanctity and security of the home.
[28] Second, all of the assailants were masked and armed with firearms. Mr. Bullock was armed and masked and a party to the armed robbery and aggravated assault, together with the ancillary firearm offences.
[29] The third and most serious aggravating factor is that two of the perpetrators discharged their firearms at Mr. Kruk as he attempted to flee his confinement, one of whom shot him in the back with a sawed off shotgun causing him a grievous life threatening injury.
[30] Another aggravating factor is that Mr. Bullock had a recent youth record and release from custody for discharging a firearm with intent, and aggravated assault. Further, he was subject to a firearms prohibition order at the time of the offence.
[31] There is little by way of mitigation, however I consider the relative youth of Mr. Bullock, and a glimmer of his potential for rehabilitation as demonstrated by his constructive use of time when last incarcerated by furtherance of his formal education.
[32] Mr. Bullock’s participation in a home invasion robbery in which two forearms were discharged and the victim shot in the back as he attempted to flee his confinement calls for a sentence in the mid to upper end of the range imposed in such cases. The facts of this case make it one of the more serious because of the grievous injuries sustained by Mr. Kruk. As such the sentence imposed needs to be one that reflects the severity and seriousness of the offence committed in order to serve as an exemplary sentence.
[33] On the charge of aggravated assault I sentence Mr. Bullock to 8 years in the penitentiary, 8 years for the armed robbery, 8 years for discharge of firearm with intent to endanger life, 4 years for each of the remaining firearm offences, all to be served concurrent with the 8 year sentence imposed for the aggravated assault. In addition, I sentence Mr. Bullock to a further 18 months for the breach of the firearm prohibition order to be served consecutively to the 8 year sentence imposed for aggravated assault.
[34] In the result, I sentence Russell Bullock to a global sentence of 9 1\2 years’ incarceration.
[35] Mr. Bullock shall be given credit for pre-sentence custody from date of his arrest April 4, 2013, 2 years 3 months at the rate of 1.5 to 1, thereby reducing his sentence by 3 years 4 months. He shall be required to serve a further 6 years 2 months in the penitentiary.
[36] In accordance with the principles set out in R. v. Kienapple, 1974 14 (SCC), [1975] 1 S.C.R. 729 the offences of assault with a weapon, s.267 (a) and the two counts under s.91 (1) of unauthorized possession of a firearm, a sawed off shotgun and a handgun, are conditionally stayed as arising on the same facts for which sentences have been imposed respectively for the offences of aggravated assault and discharge firearm with intent to endanger life.
[37] There will be a mandatory order under s.109 of the Criminal Code prohibiting Mr. Bullock from the possession of weapons for life. Further, there shall be a DNA order pursuant to s.487.051 (1) authorizing the taking of a DNA sample.
A.J. O’Marra J.
Released: June 30, 2015
COURT FILE NO.: CR-14-10000056-0000
DATE: 20150630
BETWEEN:
HER MAJESTY THE QUEEN
– and –
RUSSELL BULLOCK
Accused
REASONS FOR SENTENCE
A.J. O’Marra J.
Released: June 30, 2015