ONTARIO
SUPERIOR COURT OF JUSTICE
COURT FILE NO.: 14-30000070-0000
DATE: 2015-11-18
B E T W E E N:
HER MAJESTY THE QUEEN
Brian Moreira for the Crown
- and -
DAKARAI STANFORD
Ben Fedunchak for Dakarai Stanford
HEARD: October 15, 2015
REASONS FOR SENTENCE
CORRICK J. (orally)
[1] On July 2, 2015, following a trial, I found Dakarai Stanford guilty of break and enter, robbery, and aggravated assault. The three offences occurred on May 23, 2012. The details of the offences are set out in the Reasons for Decision I delivered on July 2.
[2] Briefly, on May 23, 2012, Mr. Stanford and another male broke into Justin O'Connor's home through a back door, and proceeded upstairs to Mr. O'Connor's bedroom where they began taking Mr. O'Connor's belongings. Mr. O'Connor was in the basement of his home at the time. He went to his bedroom to investigate and discovered two men whom he knew from high school standing in his bedroom. When he ordered the men out of his house, Mr. Stanford punched him on his left cheek. A fight between the three men ensued. It continued down to the main floor of the house. Mr. O'Connor was punched by both men, although he testified that Mr. Stanford was the main aggressor.
[3] Mr. O'Connor was injured during the fight. He suffered a broken nose, a broken cheek bone and a significant amount of blood loss. He was hospitalized for two nights and three days.
[4] A number of items were stolen by Mr. Stanford and the other male from Mr. O'Connor's bedroom, including a gold G-Shock watch, a Louis Vuitton belt, five Polo baseball caps and two pairs of Jordan basketball shoes.
[5] Mr. Stanford appears before me today for sentencing.
Positions of the Parties
[6] Mr. Moreira, on behalf of the Crown, submitted that a penitentiary sentence of five years is called for in this case to adequately address the sentencing objectives of deterrence and denunciation, which are the primary considerations in cases of home invasion. He fairly submitted that the sentence imposed should fall at the low end of the range given Mr. Stanford's youth and lack of criminal antecedents.
[7] Mr. Fedunchak submitted that the court must consider that Mr. Stanford is a youthful first offender with significant family and community support, who has been subject to conditions of house arrest for the past 3½ years.
Principles of Sentencing
[8] Sentencing is a difficult task for a trial judge, particularly in a case such as this, which involves a youthful first offender who has committed serious offences of violence. In determining a fit sentence, I am guided by the sentencing principles set out in the Criminal Code.
[9] The fundamental purpose of sentencing, as set out in s. 718 of the Criminal Code, is to "contribute, along with crime prevention measures, to respect for the law and the maintenance of a just, peaceful and safe society" by imposing sentences that have one of six objectives. The objectives include the following:
▪ denouncing unlawful conduct;
▪ deterring the offender and others from committing crimes;
▪ separating offenders from society where necessary;
▪ assisting in the rehabilitation of the offender;
▪ providing reparations for harm done to the victim or to the community; and
▪ promoting a sense of responsibility in the offender and acknowledgement of the harm done to victims and the community.
[10] Any sentence I impose must be proportionate to the gravity of the offence and the responsibility of the offender: s. 718.1 of the Criminal Code.
[11] Keeping in mind the purposes of sentencing, I am also required by s. 718.2 to bear the following principles in mind when imposing sentence:
▪ the sentence should be increased or reduced to account for any relevant aggravating or mitigating circumstances relating to the offence or the offender;
▪ the sentence should be similar to sentences imposed on similar offenders for similar offences committed in similar circumstances;
▪ offenders should not be deprived of liberty if less restrictive sanctions are appropriate; and
▪ all available sanctions other than imprisonment that are reasonable in the circumstances should be considered for all offenders.
Circumstances of the Offender
[12] Mr. Stanford is 21 years old. At the time of these offences, he was 18. He resides in Toronto with his mother and younger sister. His parents separated when he was 12 years old. He continues to enjoy a strong relationship with both of his parents.
[13] Mr. Stanford has a high school education. In September 2014, he began studying at the University of Toronto, but left after one month to pursue the study of construction engineering technology at George Brown College. He completed one semester at George Brown but became distracted by the trial of these charges, and has deferred his studies.
[14] A pre-sentence report, marked as Exhibit #1, indicates that Mr. Stanford has been employed as warehouse staff at the Rogers Centre since 2013. The number of hours he works each week varies depending on the number of events being staged at the Rogers Centre. He has also worked with a temporary employment agency doing factory and restaurant work.
[15] The author of the pre-sentence report contacted Mr. Stanford's family physician and a Program Service Co-ordinator at Central Toronto Youth Services, who has been counselling Mr. Stanford since July 2015. Both sources reported that Mr. Stanford is ambitious and motivated, but has been somewhat depressed recently. He has been referred to a psychiatrist to assist him in this regard.
[16] Attached to the pre-sentence report are five letters written by family and friends in support of Mr. Stanford. They speak of a kind, loving and hard-working young man deeply committed to his family, who has matured in the last three years. It is clear from these letters and from the pre-sentence report that Mr. Stanford has the support of his family, friends, and members of the larger community.
[17] There is no evidence that Mr. Stanford suffers from a mental illness or abuses drugs or alcohol. It appears that the commission of these offences is out of character for Mr. Stanford.
Impact on Mr. O'Connor
[18] A Victim Impact Statement written by Mr. O'Connor was marked as Exhibit #2. Not surprisingly, these offences have taken a toll not only on Mr. O'Connor's physical well-being, but also on his psychological well-being. He reported that he has suffered from paranoia, anxiety and insomnia as a result of these offences. He no longer feels safe in his own home. He has installed a lock on his bedroom door, which requires a key to open. A psychiatrist has diagnosed him as suffering from post-traumatic stress disorder.
[19] Shortly after the offences, Mr. O'Connor was arrested, charged and ultimately found guilty of a number of offences related to the purchase and possession of stun guns. He testified that he bought a stun gun over the internet for his personal safety but then realized he could earn a profit reselling them so he purchased more. It is difficult to connect his purchase of a dozen stun guns for resale with the effect of these crimes, and I do not consider that an aggravating circumstance.
[20] Mr. O'Connor's Victim Impact Statement summarizes the impact of these crimes on him this way: "… I went from being a young happy go lucky guy to a fear stricken hermit scared to come out of its shell."
Legal Parameters
[21] The offences of break and enter into a dwelling house, and robbery are punishable by a maximum sentence of life imprisonment. Aggravated assault is punishable by fourteen years in prison.
[22] I am required to consider sentences imposed on similar offenders for similar offences committed in similar circumstances. In that regard, I have carefully reviewed the decisions to which Mr. Moreira has referred me in support of his position that a five-year prison term is the appropriate sentence.
[23] A review of the cases demonstrates that sentencing is not an exact science. It is instead a profoundly individualized process driven by the unique facts of every offence and the unique characteristics of every offender. The circumstances of any case, including this one, can be readily distinguished from any other case.
[24] The jurisprudence does, however, establish certain principles to be considered in determining the appropriate sentence in a case such as this. Firstly, the Ontario Court of Appeal has held that home invasion robberies call for stiff penitentiary sentences within a wide range of four to thirteen years.[^1] Stiff sentences recognize the sanctity of one’s home and the right of everyone to feel safe and secure in their home.
[25] Secondly, the primary objectives in sentencing a youthful first offender are individual deterrence and rehabilitation, although denunciation and general deterrence must be given significant weight in crimes of serious violence, such as home invasion robberies.[^2]
Aggravating and Mitigating Factors
[26] I will now consider the aggravating and mitigating factors present in this case. First, the aggravating factors:
Mr. O'Connor's home was invaded. The one place where he should be able to feel safe and secure was violated by Mr. Stanford. The Criminal Code recognizes this as an aggravating factor in s. 348.1.
Mr. Stanford was the main aggressor in these events. Much of the violence was gratuitous. Mr. Stanford threw the first punch when Mr. O'Connor ordered the men out of his house.
These crimes were deliberate. Mr. Stanford and the second man entered the home and went straight to Mr. O'Connor's bedroom where he stored his possessions. They knew what they were looking for and where it was located, and they headed straight for it.
The impact of these crimes on Mr. O'Connor has been devastating and enduring. He has suffered both physically and emotionally.
[27] The following mitigating factors are present in this case:
Mr. Stanford is a youthful first offender. He was 18 at the time of the offences, and is 21 years old now.
From all accounts, he is a kind, loving young man deeply committed to his family. The commission of these offences appears to be out of character for Mr. Stanford. The court does not know what motivated Mr. Stanford to participate in these offences at all.
He has the love and support of a tight-knit loving family.
He is ambitious and hard-working and appears to have the ability to be a contributing member of society. His prospects for rehabilitation are strong.
He has fully complied with strict house arrest conditions of bail for nearly 42 months, since May 28, 2012. He was not permitted to leave his house other than to attend school or work, unless he was in the continuous presence of one of his sureties. Time spent by Mr. Stanford under pre-sentence house arrest is a relevant mitigating factor and should be given some weight in determining the appropriate sentence.[^3]
Determination of a Fit Sentence
[28] In this case, I am required to balance conflicting sentencing objectives.
[29] On the one hand, Mr. Stanford is a youthful first offender with strong prospects for rehabilitation. The commission of these crimes appears to be out of character for him. Generally, under these circumstances, individual deterrence and rehabilitation take prominence in determining the appropriate sentence.
[30] On the other hand, Mr. Stanford has been found guilty of serious crimes of violence, which have had a significant impact on the victim. Generally, in these circumstances, denunciation and general deterrence are given prominence in the determination of a fit sentence. These kinds of crime require the imposition of lengthy prison sentences, even in the case of a youthful first offender.
[31] Before taking into account any credits to which Mr. Stanford may be entitled by virtue of his brief three-day period in pre-trial custody and the restrictions on his pre-sentence liberty, I am of the view that a sentence of 4½ years imprisonment addresses the applicable principles of sentencing. It recognizes both the gravity of the offences, his youth, the lack of criminal antecedents and Mr. Stanford's rehabilitative prospects.
[32] Mr. Stanford has been subject to stringent restrictions on his liberty since his release on bail on May 28, 2012. As I have already indicated, this is a circumstance that must be taken into account in sentencing. In R. v. Downes, Rosenberg J.A. stated that there is no mathematical formula to apply to determine the appropriate credit for stringent bail conditions. Rather, it is a matter of discretion that will depend upon a consideration of a number of factors including:
▪ the length of time spent on bail under house arrest;
▪ the stringency of the bail conditions;
▪ the impact on the offender's liberty; and
▪ the ability of the offender to carry on normal relationships, employment and activity.
[33] Mr. Stanford is also entitled to credit not exceeding 1.5:1 for the three days he spent in pre-trial custody.
[34] I have very little information about the impact the stringent bail conditions have had on Mr. Stanford. However, it is clear that they are stringent and he has been subjected to them for nearly 42 months. In all of the circumstances, it is fair to credit Mr. Stanford with six months for his time in pre-trial custody and the conditions of his judicial interim release.
[35] As a result, Mr. Stanford is sentenced to a total of four years in prison on all three counts, concurrent to each other.
Ancillary Orders
[36] There will be a mandatory prohibition order under s. 109 of the Criminal Code. Mr. Stanford is prohibited from possessing any firearm, cross-bow, restricted weapon, ammunition or explosive substance for ten years after his release. In addition, he is prohibited from possessing any prohibited firearm, restricted firearm, prohibited weapon, prohibited device or prohibited ammunition for life.
[37] Robbery is a primary designated offence under the Criminal Code. I therefore order that Mr. Stanford provide such number of samples of bodily substances as are reasonably required for the purpose of forensic DNA analysis.
Corrick J.
Released: November 18, 2015
COURT FILE NO.: 14-30000070-0000
DATE: 20151118
ONTARIO
SUPERIOR COURT OF JUSTICE
HER MAJESTY THE QUEEN
– and –
DAKARAI STANFORD
REASONS FOR SENTENCE
Corrick J.
Released: November 18, 2015
[^1]: R. v. Wright (2006), 2006 40975 (ON CA), 216 C.C.C. (3d) 54; R. v. Mann, 2010 ONCA 342; R. v. Brown, 2015 ONCA 361.
[^2]: R. v. Brown, supra. at para. 7
[^3]: R. v. Downes (2006), 2006 3957 (ON CA), 79 O.R. (3d) 321 (Ont.C.A.)