CITATION: R. v. MEADS 2016 ONSC 8186

FRIDAY, DECEMBER 9, 2016

R E A S O N S F O R S E N T E N C E

FUERST, J. (Orally)

Introduction

[1] The penalty to be paid by those who invade the homes of others to terrorize and steal is substantial. It is especially so where, as in this case, firearms are involved.

[2] Mr. Meads pleaded guilty to robbery, possession of a shotgun without being the holder of a licence for it, and pointing a firearm.

The Circumstances of the Offences

[3] Shortly before 12:27 a.m. on December 27, 2014, Justin Meads, Tyler Scott and a third man entered the Barrie townhouse where Rocky Jackson and Jerry Handy lived. The two men were home that night. Jordan Burroughsford and Tabatha Lovatt were with them.

[4] The three intruders were dressed in dark clothing. They had their faces covered, in an attempt to obscure their identities.

[5] Mr. Meads was armed with a 12 gauge loaded shotgun. Mr. Scott was armed with a collapsible baton and a can of pepper spray. The third man was armed with a handgun.

[6] Mr. Meads did not hold any licence or authorization to possess firearms.

[7] Mr. Meads entered the living room of the townhouse. He ordered the four occupants to the ground, while pointing the shotgun at all of them. Mr. Scott entered the living room and began hitting Mr. Jackson and Mr. Handy with the baton. The third suspect ran upstairs to the second floor.

[8] Mr. Meads then turned his attention to Ms. Lovatt, who was hiding under the dining room table. He ordered her out from under the table, while pointing the shotgun at her. Mr. Burroughsford attacked Mr. Meads, and was able to disarm him. Mr. Burroughsford struck Mr. Meads in the head until he believed him to be unconscious.

[9] Mr. Jackson grabbed Mr. Scott and called for Mr. Burroughsford to help him. Mr. Burroughsford hit Mr. Scott in the face. Mr. Scott sprayed pepper spray at Mr. Burroughsford and Mr. Jackson. This made it difficult for everyone in the house to breathe. It also caused redness and pain in everyone’s eyes and made it difficult for them to see. As a result, Mr. Scott was able to get away from Mr. Jackson.

[10] Mr. Scott helped Mr. Meads to his feet, at which time Mr. Burroughsford struck Mr. Meads in the face with the butt end of the shotgun.

[11] While Mr. Scott and Mr. Meads attempted to leave the residence, the third suspect came down the stairs holding a small safe. He met up with Ms. Lovatt in the entrance to the residence, where she was trying to escape out the front door. She ran back through the residence toward the back door.

[12] The third suspect saw Mr. Burroughsford in the living room, and realized that he was armed with a shotgun. The third suspect shot at Mr. Burroughsford. The bullet missed Mr. Burroughsford, passed through the wall behind him, and struck a fence at the rear of the backyard. The spent bullet was not recovered.

[13] Mr. Scott, Mr. Meads and the third suspect fled the residence through the front door. Mr. Burroughsford locked the door. The victims called the police.

[14] Moments later, the third suspect returned to the residence and fired a shot from the handgun at the front entrance. It hit the hydro box outside the front door. A shell casing for a .22 calibre bullet was found later. The handgun was never recovered.

[15] All four victims were taken to the hospital and treated for the effects of the pepper spray. In addition, Mr. Handy suffered a contusion to his right elbow, and a laceration to his scalp, which required staples to close. Mr. Burroughsford suffered a contusion on his chest. Mr. Jackson suffered a cut to his elbow and bumps on his head and knee.

[16] When the police arrived, they found the shotgun on the front step of the house, where Mr. Burroughsford had placed it. The serial number on the shotgun had been defaced and could not be determined.

[17] The police found a marijuana grow operation in the basement of the house. Mr. Jackson, Mr. Handy, and Denem Beutler, who also lived in the house, were charged with drug-related offences. Mr. Beutler was a drug dealer. He typically kept drugs and money in a safe in the house.

[18] Police stopped Mr. Scott in a taxi cab leaving the area. He had a fresh cut on his brow, and blood on his right knuckles.

[19] Mr. Scott was subject to a recognizance of bail that required him to observe a daily curfew from 7:00 p.m. to 7:00 a.m., unless with a surety. He was arrested for breach of recognizance, and later charged with offences related to the home invasion.

[20] At the time of the incident, Mr. Scott was dating Joelle Hugill. She was a former girlfriend of Mr. Beutler.

[21] As a result of their investigation, the police obtained information that Mr. Meads was one of the perpetrators of the home invasion. The police spoke with his father, who told them that he had seen his son with facial injuries, and that his son passed off the injuries as having been sustained in a fight in Toronto. Mr. Meads’ employer told the police that Mr. Meads had some facial injuries, and that he took time off work because he had a concussion. Mr. Meads told his employer that he had been “jumped”.

[22] A police officer telephoned Mr. Meads on January 29, 2015, and advised him that he would be arrested. Mr. Meads did not turn himself in until February 10, 2015, by which time the police had obtained a warrant for his arrest. Mr. Meads gave a statement, in which he said that he had been with a friend when he was injured in a fight in Toronto, and that he had been treated at St. Michael’s Hospital in Toronto. Hospital records showed that he had been treated there for facial and head injuries on the morning of December 27, 2014.

[23] The result of DNA analysis was that Mr. Meads could not be excluded as the source of blood from inside the house and the immediate area of the house.

[24] Mr. Scott’s cell phone was found in the house. The records for the phone revealed that Mr. Scott had been in cell phone contact with Mr. Meads at various times in the month leading up to the home invasion.

[25] The third suspect was never identified.

[26] No Victim Impact Statements were provided by the victims of the home invasion.

The Circumstances of Mr. Meads

[27] Mr. Meads is now 23 years old. He was 21 at the time of the offences. He is before me as a first offender. Defence counsel, Mr. Rolfe, did not seek a Pre-Sentence Report.

[28] Mr. Rolfe advised me that Mr. Meads’ parents separated while he was still in school, at least in part because of his father’s alcoholism. As a teenager, Mr. Meads spent time with both his parents. They are supportive of him, and each has attended court on his various appearances.

[29] Mr. Meads completed high school, and then became employed with the City of Barrie, where he completed a co-op placement during school. He worked at a variety of positions for the City, including as a Zamboni driver at local arenas. At the time of his offences, he had been employed with the City for about four years.

[30] Mr. Meads’ former hockey coach provided a letter of support, describing him as an even-tempered person who worked well in a team environment and was a positive influence on others. In another letter of support, Mr. Meads’ aunt wrote that he is an intelligent, personable and caring young man.

[31] Before me in open court, Mr. Meads said that he was sorry for his actions and that he had no excuses for his conduct. He said that he deserves any sentence he gets, and that he just wants to move forward.

[32] Mr. Meads spent almost three months in custody before seeking bail. He was granted release on a recognizance in the amount of $100,000 with his mother as a surety and with conditions, on May 4, 2015.

[33] One of the release conditions required that Mr. Meads remain in his residence at all times and not leave the boundaries of the residential property, except for court appearances or meeting with his lawyer or to comply with other release conditions, all in the company of his surety, or for medical emergencies. It also required that he wear a GPS ankle bracelet monitored by Recovery Science Corporation, at all times.

[34] On July 28, 2015, Mr. Meads cut off his ankle bracelet, and absconded. He was arrested in Barrie on August 4, 2015, pursuant to s. 524 of the Criminal Code, and charged with two counts of breach of recognizance. He was held in custody.

[35] on December 8, 2015, the Crown sought and obtained cancellation of Mr. Meads’ bail on the home invasion charges, under s. 524(8). Mr. Meads did not reapply for release.

[36] On July 14, 2016, Mr. Meads pleaded guilty to breach of recognizance. He was sentenced to 30 days in jail.

[37] Mr. Meads has been held at the Central North Correctional Centre. Jail records show that since his re-arrest in August 2015, he has experienced 64 days of total lockdown, meaning confinement to his cell for the total hours when cells would normally be unlocked, and an additional 38 hours of lockdown.

The Positions of the Parties

[38] On behalf of the Crown, Ms. Shirreffs submits that Mr. Meads should be sentenced to six years in jail, less credit for pre-sentence custody. The offences were very serious, and included features of a home invasion. In particular, there were elements of planning by Mr. Meads and his co-perpetrators, two firearms were brought to the house, and Mr. Meads used the shotgun by pointing it at the victims. The objectives of denunciation and general and specific deterrence are paramount. Even in the absence of a criminal record, a lengthy penitentiary sentence is warranted. Ms. Shirreffs seeks a DNA order, a s. 109 weapons prohibition order, and an order of non-contact with the victims and the co-accused while Mr. Meads is in custody.

[39] Ms. Shirreffs agrees that Mr. Meads should receive credit for his pre-sentence custody on a one and a half to one basis, for the period before his release on bail and, additionally, the period after he was re-arrested to the date the s. 524 application was granted. Otherwise, she relies on decisions, including decisions of the Court of Appeal for Ontario, where enhanced pre-sentence custody was denied to offenders who were reincarcerated after breaching bail.

[40] On behalf of Mr. Meads, Mr. Rolfe submits that the sentence should be one of five years in jail, less credit for pre-sentence custody. He concedes that the offences were serious, but he emphasizes that the accused is a youthful first offender, who has demonstrated remorse by his guilty plea. He does not oppose the ancillary orders sought by the Crown.

[41] On the issue of credit for pre-sentence custody, Mr. Rolfe submits that Mr. Meads should receive credit on the basis of one and a half to one for all of his time in custody, other than 20 days in jail attributable to the sentence served for breach of recognizance. While the breach of bail was flagrant, Mr. Meads was found by the police in Barrie. He pleaded guilty, and was sentenced for that offence. His time in custody since his re-arrest has involved lockdowns, which is a circumstance above and beyond the loss of remission, and should entitle him to enhanced credit.

The Principles of Sentencing

[42] The objectives of sentencing long recognized at common law have been codified in s. 718 of the Criminal Code. They are the denunciation of unlawful conduct and the harm done to victims or the community by that unlawful conduct, deterrence, both general and specific, the separation of the offender from society where necessary, rehabilitation, reparation for harm done to the victims or the community. and promotion of a sense of responsibility in offenders and acknowledgment of the harm done.

[43] Section 718.1 provides that a sentence must be proportionate to the gravity of the offence and the degree of responsibility of the offender. Section 718.2 provides that a sentence should be increased or decreased to account for any aggravating and mitigating circumstances. It sets out various aggravating factors. It also requires that a sentence be similar to those imposed on similar offenders in similar circumstances, that the combined duration of consecutive sentences not be unduly long, that an offender not be deprived of liberty if less restrictive sanctions may be appropriate, and that all available sanctions, other than imprisonment that are reasonable in the circumstances and consistent with the harm done to victims or the community be considered.

[44] In R. v. Brown, 2015 ONCA 361, the Court of Appeal for Ontario adopted its previous decision in R. v. Thurairajah, 2008 ONCA 91, where it stated that serious crimes of violence provide an exception to the general rule that sentences imposed on young first offenders will stress individual deterrence and rehabilitation. In cases of serious crimes of violence, the objectives of denunciation and general deterrence gain prominence.

[45] The Court in Brown identified the range of sentence for home invasions as four to five years at the low end and up to 11 to 13 years at the high end.

Analysis

[46] As I observed in sentencing Mr. Scott for his offences, while all home invasion robberies are serious crimes, this one involved marked aggravating features. It was a joint enterprise, a group activity, carried out by three males acting in concert. It was perpetrated at night, when at least some residents of the house could be expected to be home and so, directly victimized. The perpetrators attempted to disguise themselves, reflecting a degree of planning and forethought on their part. They openly carried not just one, but two firearms with them, both of which were loaded. The firearms were not simply brandished to intimidate the occupants of the house, they were used to attempt to incapacitate them. Mr. Meads pointed the shotgun at all of the occupants. The handgun was discharged at Mr. Burroughsford, albeit by the third suspect and not Mr. Meads. Mr. Scott came armed with a baton and pepper spray. He used the baton to inflict physical harm on Mr. Handy and Mr. Burroughsford. He sprayed the pepper spray at Mr. Jackson and Mr. Burroughsford, causing everyone in the house to suffer breathing and vision problems.

[47] Although no Victim Impact Statements were provided, it can be inferred that the events were extremely frightening for the victims.

[48] In addition, even after being notified by the police that he would be arrested, Mr. Meads delayed turning himself in for days. He lied to the police about the cause of his injuries.

[49] In mitigation, I take into account that Mr. Meads is young. Unlike Mr. Scott, who had a previous Youth Court record including for robbery, Mr. Meads is a first offender. He pleaded guilty, which is a sign of remorse and willingness to take responsibility for his actions. He expressed remorse in court. Although his guilty pleas were not early pleas, they were entered sufficiently in advance of a trial date that weeks of court time were saved.

[50] In Brown, an 18 year old first offender received a global sentence of nine years in jail for a home invasion robbery committed with two other persons. The trio were looking for guns. The female victim was struck multiple times, including on the head with both a golf club and a pistol. The assailants poured gasoline on her and threatened to ignite it. She was left with serious and permanent physical and psychological injuries. The offender was convicted after a jury trial. The Court of Appeal for Ontario described Mr. Brown’s offence as one of “horrific violence”, but nonetheless reduced his global sentence from one of nine years, to seven years in jail.

[51] Mr. Meads, like Mr. Brown, is a youthful first offender. But unlike Mr. Brown, Mr. Meads pleaded guilty. This is an important distinction for sentencing purposes.

[52] I also take into account the need for parity in the sentence that I impose on Mr. Meads, in comparison to the sentence I imposed on Mr. Scott. I sentenced Mr. Scott to a global sentence of six years and nine months in jail, less credit for pre-sentence custody calculated on a one and a half to one basis, leaving a net sentence to be served of four years and 20 days.

[53] Mr. Scott, like Mr. Meads, was a youthful offender, but unlike Mr. Meads, he did not come before the court with an unblemished past. And unlike Mr. Meads, Mr. Scott was on bail when he committed the home invasion. Additionally, he was bound by a weapons prohibition order.

[54] Even though Mr. Meads and Mr. Scott were co-perpetrators, the circumstances of Mr. Meads justify a lesser global sentence for him.

[55] I next consider the issue of enhanced credit for Mr. Meads’ pre-sentence custody.

[56] In response to a constitutional challenge brought by Mr. Rolfe, I declared the relevant portion of s. 719(3.1) of the Criminal Code to be of no force and effect. However, the Court of Appeal for Ontario has recognized a trial judge’s discretion at common law to deny enhanced credit for pre-sentence custody, where an offender was re-arrested and detained because he breached his bail conditions. In R. v. Warren, (1999), 1999 CanLII 2205 (ON CA), 127 O.A.C. 193, at para. 7, the Court expressed the rationale this way:

The appellant had been given every opportunity to remain at large so that he would not suffer the prejudice from pre-trial custody. By his own actions, he jeopardized his bail status and ultimately he had to be detained pending his trial.

The Court upheld the trial judge’s decision to deny the appellant fully enhanced credit for his time in pre-sentence custody after his re-arrest.

[57] I appreciate that Mr. Meads has been sentenced already for the breach of recognizance, and that it is not open to me to sentence him again for that offence. That said, it is clear from the decision in Warren that the fact he breached his bail and the nature of the breach are relevant considerations in determining whether I grant him enhanced credit for his pre-sentence custody.

[48] The reasoning in Warren is applicable to Mr. Meads. Electronic monitoring combined with a house arrest condition is resorted to by the courts not only as a means of ensuring the attendance at court of an accused who is released on bail, but also to protect the safety of the community in which the accused resides while he or she awaits trial. Mr. Meads’ conduct in cutting off the electronic monitoring ankle bracelet, leaving his residence, and remaining at large for several days, was a deliberate and flagrant breach of his recognizance, a recognizance that was set at a very high amount reflecting the seriousness of the charges. No explanation has been offered by Mr. Meads for his breach.

[59] Accordingly, I decline to grant Mr. Meads full one and a half to one credit for his time in pre-sentence custody. I grant him that enhanced credit for the approximately three months before he was released on bail, which I treat as four and a half months. I grant him that enhanced credit for the period from the date of his re-arrest until the s. 524(8) order was made, a period of four months which I treat as six months. I grant him that enhanced credit for the period of just over two months since his guilty plea, because there has been some delay in completing the sentencing proceedings. I treat that period as three months and 15 days. The total of the enhancement aspect of the credit is five months. It is in addition to the one for one credit for the period of 18 months and 10 days that he has been in custody, after his time on bail and the time attributable to his sentence for breach of recognizance is deducted.

[60] The total pre-sentence custody credit is 23 months and 10 days.

Conclusion

[61] Mr. Meads, please stand. After weighing the aggravating and mitigating factors in your case, and applying the principles articulated in Brown, including the importance of denunciation and general deterrence, I am satisfied that a global sentence of five years in the penitentiary is appropriate.

[62] On count 2, which carries a minimum punishment of four years in jail, I sentence you to five years in jail. Against the sentence on that count, I credit you for time in pre-sentence custody of 23 months and 10 days, leaving a net sentence to be served of three years and 20 days. On count 5, I sentence you to two years in jail concurrent. I count 9, I sentence you to three years in jail concurrent.

[63] To be clear, the global sentence left to be served is one of three years and 20 days in jail.

[64] There is a DNA order on all counts, and on count 2, a s. 109(2)(a) order for 10 years and a s. 109(2)(b) order for life. I order that Mr. Meads have no contact, direct or indirect, with any of the four named victims, Mr. Scott, or Ms. Hugill while he is in custody.

form 2

CERTIFICATE OF TRANSCRIPT (SUBSECTION 5 (2)

Evidence Act

I

Phyllis Torrance

(Name of Authorized Person)

certify that this document is a true and accurate transcript of the recording of

R. v. JUSTIN MEADS

in the

SUPERIOR COURT OF JUSTICE

(Name of Case)

(Name of Court)

held at

75 Mulcaster Street, Barrie, ON

(Court Address)

taken from Recording

3811-02-20161209-090343-10-FUERSTM.dcr

, which has been certified in Form 1 by L. Morgan.

January 29, 2017

P. Torrance ACT ID 4026163594

ONTARIO

SUPERIOR COURT OF JUSTICE

HER MAJESTY THE QUEEN

v.

JUSTIN MEADS

P R O C E E D I N G S I N C O U R T

[REASONS FOR SENTENCE]

BEFORE THE HONOURABLE JUSTICE M. FUERST

on December 9, 2016 at BARRIE, Ontario

APPEARANCES:

L. Shirreffs Counsel for the Crown

E. Rolfe Counsel for Justin Meads

SUPERIOR COURT OF JUSTICE

TABLE OF CONTENTS

Exam.

Cr.-

Re-

WITNESSES:

In-Ch.

exam.

exam.

None.

EXHIBITS

EXHIBIT NUMBER ENTERED ON PAGE

None.

REASONS FOR SENTENCE

1

Transcript Ordered: . . . . . . . . . . . December 19, 2016

Transcript Completed: . . . . . . . . . . December 29, 2016

Notified Ordering Party:. . . . . . . . . January 30, 2017