Regina v. Lavalle Bobb

CITATION: R v Bobb, 2016 ONSC 1182

COURT FILE NO.: 13-4/398

DATE: 20160217

SUPERIOR COURT OF JUSTICE - ONTARIO

RE: Regina v. Lavalle Bobb

BEFORE: E.M. Morgan J.

COUNSEL: Anna Stanford, for the Crown

Charn Gill, for the Defendant

HEARD: Sentencing submissions, January 28, 2016

SENTENCING

I. Background of the offense

[1] Lavall Bobb was convicted at trial of participating in an armed home invasion that occurred on May 24, 2012 at the North York home of the Russell family. During the course of that incident, three members of the Russell family and the girlfriend of one of the Russell sons were unlawfully confined and terrorized, the father was beaten and robbed of some gold jewelry that was yanked from around his neck, and two of the sons were beaten and one of them was robbed of some cash and a small amount of marijuana.

[2] Mr. Bobb was one of six intruders into the home, and thus took part in a common plan to perpetrate forcible confinement and robbery. He was identified by the taxi driver who took him to and from the Russell house. He spoke with the driver, his finger print was found on the taxi, and he can be seen on the security camera video exiting the taxi and approaching the Russells’ front door at the very time of the attack.

[3] None of the four victims of the home invasion provided victim impact statements, but it was clear from their testimony at trial that they were traumatized by the event. The perpetrators, which included Mr. Bobb, were armed with at least one firearm, and were extremely aggressive with the four people that they found in the household.

[4] The invaders had their faces obscured during their time inside the Russell home, and so it has not been determined whether Mr. Bobb wielded a firearm or committed any of the actual beatings during the incident. Nevertheless, there is no doubt that the intrusion into the Russell family home was a planned and violent assault on the victims’ personal security and property.

II. Sentencing principles for home invasions

[5] In R v M (C), 1996 230 (SCC), [1996] 1 SCR 500, at 566, Lamer CJC articulated the objectives of sentencing in an instructive way:

The determination of a just and appropriate sentence is a delicate art which attempts to balance carefully the societal goals of sentencing against the moral blameworthiness of the offender and the circumstances of the offence, while at all times taking into account the needs and current conditions of the community.

[6] The Court of Appeal has observed that in cases of home invasions, the courts must give priority to the sentencing objectives of deterrence and denunciation. As it was put in R v Wright, (2006), 2006 40975 (ON CA), 83 OR (3d) 427, at para 14, “…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”.

[7] That, of course, is not to say that one size fits all when it comes to fashioning the appropriate sentence in a case of this kind. The Court of Appeal has equally observed that home invasion cases “require an especially nuanced approach to sentencing that involves a careful examination of the circumstances of the case at hand, of the nature and severity of the offenders’ conduct and the circumstances of each offender involved in the offences”: R v Jacko, 2010 ONCA 452, [2010] OJ No 2583, at para 89.

[8] There is little about the incident in issue that reduces the impact of the crime. As indicated, the offense was a planned and menacing one. The perpetrators arrived in two separate groups and converged in force on the house. During the course of the home invasion they broke the nose of a 60-year old father, dropped furniture on top of and beat a youthful victim to the point that he required hospitalization, terrorized a sensitive young woman into abject fear, and bound and beat an older brother whose money they apparently came to rob.

[9] One of the perpetrators, although it is not certain which one, brandished a firearm – or what the victims at least assumed was a real firearm. In this respect, the incident is reminiscent of the home invasion described in R v Wills, 2014 ONCA 178, at para 60: “Even if the weapon pointed into the face of [the victim] as she lay helpless on the ground believing she was about to die was not a firearm, it nonetheless terrorized [the victim]. I am sure the vision of that gun and the terror it generated will never leave her mind even if one cannot say for certain that it was a real gun.”

[10] A broad spectrum of factors that accentuate the severity of the offense and its impact were present in this case: see R v Brogan, 1999 BCCA 278, at para 10; R v Matwiy, 1996 ABCA 63, [1996] AJ No 134 (Alta CA). The home invasion was premeditated by Mr. Bobb and his group, it involved a firearm, it was violent and included beatings and threats of beatings, property was stolen from the home, the intruders knew the oldest Russell brother and knew that it was a family home where others resided, and they wore face masks or hoodies that obscured their faces.

III. Mr. Bobb’s circumstances

[11] It was apparent at the sentencing hearing that Mr. Bobb has a large and supportive family and extended family network. His counsel has submitted a thick book of character letters that speak of the positive force he has been for his family and that his well-respected family has been for him.

[12] One particularly strong letter, from his uncle who is a pastor, describes him as kind hearted and devoted to his children. His stepfather also writes quite warmly of Mr. Bobb’s best qualities as a person. His surety describes him as a leader and role model for his siblings and cousins. Family acquaintances, counsellors, and even a former school teacher have written in support.

[13] More than 15 family members and friends came to court to support him at the sentencing hearing. It is rare, and gratifying, to see such a solid expression of family and extended family solidarity at this kind of hearing.

[14] It has been four years since the date of the offence, and Mr. Bobb has been a good, responsible person during that time. Another letter from the president of his employer, RJMS Group Ltd, confirms that he has been employed for the past two years until being laid off for economic reasons and not for reasons related to his job performance. In fact, his employer says that, “Throughout these years, he was punctual, reliable and a very hard worker.”

[15] A pre-sentence report was prepared for Mr. Bobb that is generally positive. It concludes that, “He appears to be motivated to better himself with plans to upgrade his education in order to improve his employment options.” The report also indicates that Mr. Bobb has three children to whom his is quite devoted, and that his common law spouse confirmed that he is “a loving father who has helped in the raising of their children.”

[16] On the other side of the coin, Mr. Bobb was a 25-year old repeat offender with a criminal record at the time of the home invasion. Several of the people interviewed for the pre-sentence report suggested that he is susceptible to negative peer influences that have led to his encounters with the criminal justice system. Indeed, he seems to have had a hard time over the years distancing himself from criminal activity.

[17] Mr. Bobb has not taken responsibility for his actions and expresses no remorse for the pain and trauma experienced by the victims of this crime. As defense counsel points out, it is Mr. Bobb’s right to feel the way he feels about the matter. However, that leaves nothing positive to say about his having learned anything or grown in any way as a result of this experience.

IV. The range of sentences

[18] The range of sentences for home invasion offenses varies substantially depending on the circumstances of each incident. In R v Mann, 2010 ONCA 342, there were two intruders and two victims, and although there were threats of violence there were no actual injuries inflicted on the victims. One of the perpetrators pleaded guilty and was sentenced to 5 years, while the other, who had an extensive criminal record and who did not plead guilty, was sentenced to 12 years. The Crown submits that Mr. Bobb falls somewhere in the middle of these two sentences.

[19] In the Wright and the Wills cases mentioned above, the defendants were each sentenced to 8 years in prison. In Wright, the defendant pleaded guilty to allegations that are similar to the ones at issue here, except that the home invaders were present in the victims’ home for a substantially longer time than Mr. Bobb and his associates were in the Russell home. In Wills, there were two victims of the home invasion, both elderly. Like the Russell father, one of the victims was hit in the face and suffered a broken nose and a threat with a gun.

[20] The Ontario Court of Appeal confirmed a 10-year sentence in R v Harriott (2002), 2002 23588 (ON CA), 58 OR (3d) 1. The case entailed a violent assault on a husband and wife, in which the wife was bound with duct tape. A 10-year sentence was also imposed in R v DW, [2004] OJ NO 5825, where two males armed with a handgun invaded a family home and repeatedly punched a male victim. The defendants had lengthy criminal records and pleaded guilty.

[21] The courts have been clear that while every person has a right to a trial and cannot be penalized for exercising that right, a guilty plea which saves the justice system the time and expense of a full blown trial can count in a defendant’s favour in fashioning an appropriate sentence.

[22] In R v Chau, [2010] OJ No 5442, there was a home invasion that entailed no injuries to the victims. The women of the house, however, were terrorized and found in state of undress. It was clear that the defendant was not a ringleader of the group that committed the offense. He was sentenced to 6 years in prison.

[23] There are a number of home invasion cases in which shorter sentences have been given: see R v Brown and Hersi, 2013 ONSC 3321 (2 years less a day), R v Wang, 2001 20933 (ON CA), [2001] OJ No 1491 (5 years), R v Argueta, 2011 ONCJ 578 (5.5 years), and R v Whalen, 2011 ONCA 74, [2011] OJ No 312 (21 months). These, however, were all cases of youthful first offenders or aboriginal defendants where the Gladue principles apply. Neither of those conditions fit Mr. Bobb’s situation.

[24] Counsel for the Crown submits that the appropriate sentence here is 8 years, minus the 106 days of pre-sentence custody served by Mr. Bobb from Oct. 15, 2015 to Jan. 28, 2016 (which, calculated at 1.5:1 works out to 159 days, or just over 5 months). In total, therefore, the Crown seeks a further 7.5 years of custody.

[25] Counsel for the defense submits that the appropriate sentence here is 4 to 5 years, minus 106 days of pre-sentence custody and 30 days of pre-trial custody (which, calculated at 1.5:1 works out to 204 days, or just under 7 months). The defense also seeks credit for the 29 months that Mr. Bobb spent under house arrest as a condition of bail, from June 28, 2012 until December 1, 2014.

V. Application of sentencing principles

[26] Turning first to the question of credit for time spent under house arrest, the amount of credit, if any, depends on the amount of time spent, the stringency of the conditions, the impact on the defendant’s liberty and relationships, and the impact on his employment: R v Downes (2006), 2006 3957 (ON CA), 79 OR (3d) 321, at para 37. Here, there is no evidence that Mr. Bobb was impacted more severely than any other accused person on bail.

[27] The letters of support and pre-sentence report indicate that he was able to work, that he was able to see his children, and that he was able to provide for his children. Although I do not doubt that this has been a difficult time for Mr. Bobb, there is no evidentiary foundation for restrictive bail conditions being a mitigating factor on sentence.

[28] In terms of the sentence itself, I must take into account the fact that this is not Mr. Bobb’s first offense and he is not a youthful offender. I must also keep in mind that he has been convicted of being a participant in a very violent home invasion. Although Mr. Bobb has not been affirmatively identified as the intruder who actually wielded the gun or administered the beatings – he may have been, but we simply do not know – the entire incident was an aggressive intrusion into the sanctity of a family’s home. It is important to underscore society’s abhorrence at this kind of offence.

[29] That said, I will also take into account the strong family environment that Mr. Bobb comes from.

[30] As I have already mentioned, I am impressed by the intelligence and depth of feeling expressed in the many letters by family members and supporters. In addition, I could not help but note the strong support network that was on display at the sentencing hearing.

[31] This network of family and friends seems to have been effective over the past four years in prompting a marked improvement in Mr. Bobb’s sense of responsibility. He has been gainfully employed and has by all accounts been a devoted parent to his children. He appears to be on a trajectory of self-improvement.

[32] Given this combination of a violent offense with positive personal circumstances, the appropriate sentence is the mid-point between the 4-5 years suggested by defense counsel and the 8 years suggested by Crown counsel.

VI. Sentence

[33] Mr. Bobb is hereby sentenced to 6.5 years in custody.

[34] From this he is to be given credit in the amount of 7 months for the time that he spent in pre-trial and pre-sentence custody. That results in total custodial time of 5 years and 11 months from today.

Morgan J.

Date: February 17, 2016