ONTARIO
SUPERIOR COURT OF JUSTICE
COURT FILE NO.: CRIMJ(P)587/14
DATE: 2015-11-23
B E T W E E N:
HER MAJESTY THE QUEEN
Sean Doyle, for the Crown
- and -
RYAN LOOTS-SCOTT
Joanna G. Gordon, for the Defence
Defendant
HEARD: November 13, 2015
REASONS FOR SENTENCE
M.J. Donohue, J.
Overview
Ryan Loots-Scott stands to be sentenced after conviction on one count of robbery and one count of being masked with intent to commit robbery.
The Facts
[1] A robbery was committed in the early hours of the morning of November 20, 2013 by three males breaking into the Dhillon home. I found that Mr. Loots-Scott was one of those three masked intruders.
Circumstances of the Offence
[2] Nineteen-year-old Gurbir Dhillon was home alone while his parents were away on vacation for the month.
[3] Mr. Loots-Scott gained access to the home through a basement window. I found Mr. Loots-Scott had knowledge that the Dhillon home was occupied. Mr. Loots-Scott had a prior discussion with Mr. Dhillon earlier that day. Later that evening, Mr. Loots-Scott and other intruders went to Mr. Dhillon’s bedroom, woke him up and demanded that he show them where the valuables in his home were located.
[4] Mr. Dhillon was pushed out of bed and kicked. It was not made clear which of the three did this. Nonetheless, I found Loot-Scott’s behaviour to be threatening as he and two other male intruders came into Mr. Dhillon’s bedroom masked, wearing black clothing, and each carrying a kitchen or butcher knife. It was a common enterprise of the three of them.
[5] Mr. Dhillon was then asked to show the intruders where valuables were kept in the house. The intruders took two TVs, some cash, a GPS system, some alcohol, jewellery, a laptop and a cell phone. They told Mr. Dhillon to stay in a corner and not move as they were coming back. They did not return.
[6] Mr. Loots-Scott confessed to his girlfriend that morning that he and two others had done a robbery at a “brown guy’s” house. One of the other intruders was Jarrett Phillips. Police searched Mr. Phillips residence and recovered some of the stolen items from the Dhillon residence.
Circumstances of the Offender
[7] Mr. Loot-Scott was 18 years of age at the time of the offence, and is now 20.
[8] He was convicted as a youth for assault with a weapon in 2010. In 2011, he was convicted of robbery, uttering threats, assault, carrying a concealed weapon, failing to comply with recognisance, and failing to comply with disposition. He was convicted as an adult in 2013 of unlawful possession of a schedule 1,11 or 111 Substance, sec 4(1) CCC. Finally he was convicted in 2014 of assault with a weapon and uttering threats.
[9] He advised that at some earlier time he had been addicted to alcohol and drugs, but was not at the time of this offence.
[10] Mr. Loots-Scott was the eldest of five children raised by his mother who was a single parent. His father was not involved emotionally, physically or financially with the children. Mr. Loots-Scott’s mother advises that her son witnessed a lot of domestic violence while growing up. She felt that her son was turning his life around ever since he got rid of the ‘toxic crowd of friends’ that had “gotten him into trouble”.
[11] He was often responsible for caring for his younger siblings while his mother worked two jobs to make ends meet.
[12] At the time of this offence he had been working as a labourer with Forest Contractors for a year and was helping his mother financially.
[13] His sister wrote a letter of support for her brother; how he began working at age fourteen to help the family, how was the caregiver of the family while his mother worked and describing him as a good, loving, caring person who has simply made some mistakes.
[14] His brother also wrote a letter of the struggles the siblings had due to their abusive father and the financial strain on their mother, raising six children on her own; describing Mr. Loots-Scott as a hard worker and a good guy. His brother and his sister spoke of Mr. Loots-Scott’s desire to do better with his life.
[15] Previously, while on probation, Mr. Loots-Scott had completed counselling programs on anger management and domestic violence, including the PAR program.
[16] The pre-sentence report officer felt that Mr. Loots-Scott had been the product of dysfunctional upbringing. He did not complete high school nor acquire skills of a marketable trade.
Impact on the Victim and/or Community
[17] The victim, Gurbin Dhillon, testified that he cooperated with the intruders because they had knives.
[18] The victim did not submit an impact statement.
[19] His evidence at trial was that he was not injured when he was pushed out of bed and kicked.
Right of Allocution
[20] Mr. Loots-Scott did not wish to say anything to the court.
Legal Parameters
[21] Robbery is an indictable offense. Section 344(1)(b) of the Criminal Code provides for a maximum sentence of life imprisonment. Being masked with intent to commit robbery is an indictable offence pursuant to s. 351(2) and carries a maximum imprisonment of ten years.
[22] Home invasion is an aggravating circumstance to these offences. Under s. 348.1(a) and (b) of the Criminal Code, home invasion occurs when a home is occupied at the time of the offence, the accused knew the home was occupied and the accused made threats to another person.
[23] In the circumstances of this offence I am satisfied that this was a home invasion. Mr. Loots-Scott knew the home was occupied as he and the others made their way to Mr. Dhillon’s bedroom. As all three were masked and armed with knives I find that they were threatening to Mr. Dhillon.
Positions of Crown and Defence:
[24] The Crown seeks a penitentiary sentence of five years less 8.75 months credit for time served.
[25] The defence submits that a penitentiary sentence of two to four years less 8.75 months credit for time served is appropriate in this case.
Case Law
Home Invasion
[26] Home invasion offences must be dealt with sternly by the courts because the offence is a violation of highly cherished values in our society--the sanctity of the home and of the sense of security people feel when in their homes. These offences are also troubling because they are perpetrated against people who are often vulnerable (R. v. Wright, 2006 40975 (ON CA), [2006] O.J. No. 4870 (C.A.) (Wright, 2006); followed in R. v. Whalen, 2011 ONCA 74, [2011] O.J. No. 312 (C.A.) (Whalen, 2011); R. v. Oswald, [2013] O.J. No. 4131 (S.C.J.) (Oswald); and R. v. Wright, 2015 ONSC 4508, [2015] O.J. No. 3750 (S.C.J.) (Wright, 2015).
[27] The Court of Appeal called for a “particularly nuanced” approach to sentencing in R. v. Wright, supra. At paragraph 24 the court stated,
“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 A.J.C. (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.”
Sentencing Range
Robbery
[28] In robbery related offenses, where the accused is young, but has a record of multiple convictions and run-ins with law enforcement, the period of incarceration is longer than fifteen months to two years less a day (R. v. Demeter and Whitmore, (1976), 1976 1413 (ON CA), 32 CCC (2d) 379 (Ont CA); followed in R. v. Panchan, 2013 ONSC 5567, [2013] OJ No. 4022).
[29] The jurisprudence surrounding sentencing for robbery related offenses illustrates the difficulty in making the determination of the duration of incarceration. In R. v. Brown, 2013 ONSC 7910 at para 61, [2013] OJ No 5902, Justice Spies stated the following:
A review of these cases and the many others referred to by counsel illustrate that sentencing in robbery cases can be an extremely difficult exercise because the offence allows for different ways of committing the same offence of robbery and the offences typically involve various degrees of severity to be considered…They assist only in determining a broad range of sentences generally available for relatively similar offences.
[30] In R. v. Fawcett, 2012 ONSC 4462, [2012] OJ 3696, the offender was convicted of three counts of robbery by robbing three banks over 11 days. He was 24 and had previously pleaded guilty to robbing a pharmacy. He had an abusive childhood and a history of drug abuse. He was sentenced by Warkentin J. to one year of incarceration with three years of probation.
Home Invasion
[31] In Wright, 2006, the appellate court noted that home invasion sentences have fallen between a range of four or five years to 11 or 13 years. The broad range is a reflection of the many ways such a crime can be committed: the nature of the offenders, the circumstances of a particular case, the nature and severity of the criminal acts perpetrated during the home invasion and the circumstances of the individual offender (followed in Hill).
[32] In Oswald, two men, both with handguns, entered the victim’s home. Portions of the robbers’ face were covered as they asked the victim where his drugs and money were located. The victim was held on the floor by one of the intruders. At one point, when the victim tried to grab the gun in the hand of the intruder holding him down, he was struck on the left side of the head, with the gun. The strike to the victim’s head caused a wound that later required medical attention. The other intruder searched the house. The two robbers left the home with a camcorder and a small amount of cash.
[33] Bielby J. found the use of an imitation firearm and the gratuitous violence during the robbery to be aggravating factors as well as it being a home invasion. The court accepted the information contained in the accused’s letters of character as a mitigating factor. The accused received a global sentence of five years.
[34] In Wright, 2015, the accused aged 32 and two others were convicted for committing a home invasion robbery and for forcibly confining and assaulting two of the occupants of the house while carrying a weapon. The accused and the two other intruders rang the doorbell of a family home. When one of the occupants opened the door, the intruders pushed him backwards into his house. The occupant was then duct taped him and threatened with a knife. One of the intruders put a knife to another occupant’s neck and told her to keep quiet. The assailants headed for the basement and forced the family to come with them while they searched through one of the occupant’s rooms.
[35] The court found the serious and traumatic impact of the events was found to be an aggravating factor. The accused played an active and knowing role as a participant in the home invasion. The court found the offender’s youth and status as a first time offender to be a mitigating factor, following Brown. He had no criminal record, had a supportive family, and a stable work history. Due to these mitigating factors, the court was hopeful that the accused could be rehabilitated. He was sentenced to five year’s imprisonment less credit for house arrest.
[36] In Whalen, 2011, Mr. Whalen and Mr. May pleaded guilty to robbery. Three individuals, including Mr. May, entered a home armed with a variety of weapons. They threatened to kill the occupants. Mr. Whalen did not enter the home. He drove the getaway vehicle but was well aware of the plan to rob the home. The appellate court affirmed the trial judge’s sentencing decision.
[37] The appellate court noted that Mr. May was 19 years old at the time of the offence. He had a “terrible” background and had very little by way of guidance or parental control. He had accumulated a significant youth record, including two convictions for robbery. While he was placed on strict bail conditions for one and a half years, he had made very significant strides towards his rehabilitation. Mr. May’s sentence of two years less a day to be followed by three years’ probation was upheld.
[38] Mr. Whalen was 21 years of age at the time of the offence. He too had a record, but it did not involve any crimes of violence. He had a conviction for possession of a restricted weapon, but had also made substantial strides towards his rehabilitation while on bail awaiting trial. Mr. Whalen’s sentence of 21 months followed by three years’ probation was upheld.
[39] In R. v. Walsh, 2011 ONCA 325, [2011] O.J. No. 1835 (C.A.) (Walsh), the accused was sentenced for robbery; assault causing bodily harm and breach of undertaking. The offences arose in the context of a home invasion. The offender conducted the home invasion in search of drugs that he believed the victim had stolen from a pharmacy. The offender was a self-described oxycontin dealer and addict. He had a prior criminal record that involved serving four penitentiary sentences, two of which were four years in duration.
[40] The executive director of the treatment facility testified as to the offender’s exemplary efforts at rehabilitation and his contributions to the community. The offender made television and radio appearances regarding the dangers of oxycontin addiction. The judge imposed a sentence of 18 months imprisonment plus three years’ probation. The sentencing judge also gave the offender two year’s credit on a 1.6 to 1 basis for time spent in a treatment facility.
[41] The sentence was upheld by the appellate court despite the fact that the sentence was outside the normal range for a home invasion robbery. The fresh evidence of the offender’s unusual and exceptional efforts at rehabilitation justified non-interference with the sentence imposed.
[42] The Court of Appeal noted that in cases of home invasion priority is to be given to the principles of general deterrence and denunciation.
Principles of Sentencing
[43] Section 718 of the Criminal Code states that the fundamental purpose of sentencing is to contribute, along with crime prevention initiatives, a 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.
[44] At the same time, a sentence must be proportionate to the gravity of the offence and the degree of responsibility of the offender.
[45] Section 718.2 states that a court that imposes a sentence shall 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, ...
(b) a sentence should be similar to sentences imposed on similar offenders for similar offences committed in similar circumstances;
[46] Section 348.1 mandates that home invasion is an aggravating circumstance:
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.
Home Invasion
[47] In home invasion offences, the objectives of protection of the public, general deterrence and denunciation take priority (R. v. Hill, [2013] O.J. No. 6043 (C.A.)). Though rehabilitation should be considered, “a stiff penitentiary sentence is generally called for” (Wright, 2006 at para. 24; followed Walsh).
Mitigating and Aggravating Factors
[48] There are a number of mitigating factors in this case.
[49] Although I find that there was the threat of violence in the circumstances of the offence, the victim was not injured.
[50] Mr. Loots-Scott is very young-only 18 years of age at the time of the offence; and rehabilitation is hopeful.
[51] Although in trouble with the law in his youth he had begun to turn his life around and was working hard in a full time job.
[52] He was a caregiver for his younger siblings and worked to contribute to the family since the age of fourteen. He has a family that cares about him.
[53] He does not have any addiction problems at present.
[54] While detained in Maplehurst there have been no incidents of misconduct.
[55] There are also a number of aggravating factors.
[56] The defendant has a lengthy record despite his youth.
[57] He committed this offence while on community supervision.
[58] Mr. Loots-Scott was masked in this offence, which instills fear in the victims. He had a knife.
[59] The crime included gratuitous, unnecessary, violence to the homeowner.
Time Served
[60] Crown and defence counsel worked out the pre-trial custody calculations and agreed on a proposal for me to consider, being 8.75 months based on 1.5 credit for time served in relation to these charges specifically. I have reviewed the calculations and am satisfied that they are appropriate. I allow credit of 8.75 months for time served.
Reasons
[61] Mr. Loots-Scott is on the very threshold of adulthood and facing the crossroads of the path his adult life will take. He is a repeat offender.
[62] His extreme youthfulness and the responsibility he has shown to his family urges me to consider a sentence at the low end of the range for home invasion but one which still recognizes the extreme seriousness of such a crime.
[63] In light of his extreme youthful age, I am persuaded to order a sentence of four years in penitentiary less credit for time served, of 8.75 months, for the two charges, to be served concurrently.
[64] Accordingly, I find that a fit sentence, in all the circumstances, is 39.25 months, in light of the time served.
Ancillary Orders
[65] The defence does not object to the DNA order and s. 109 order for ten years as sought by the Crown.
[66] A DNA order under s. 487.051(3) of the Criminal Code will be granted. A weapons prohibition order under s. 109 (2) of the Criminal Code shall issue for a period of ten years after Mr. Loots-Scotts’ release from custody.
Final Decision
[67] Accordingly, I have endorsed the indictment as follows:
i. Four years pentitentiary less 8.75 months credit for time served for each count, to be served concurrently;
ii. a DNA order; and
iii. a weapons prohibition order for ten years.
M.J. Donohue J.
Released: November 23, 2015
COURT FILE NO.: CRIMJ(P)587/14
DATE: 2015-11-23
ONTARIO
SUPERIOR COURT OF JUSTICE
B E T W E E N:
HER MAJESTY THE QUEEN
- and –
RYAN LOOTS-SCOTT
REASONS FOR SENTENCE
M.J. Donohue J.
Released: November 23, 2015