Court File and Parties

COURT FILE NO.: CR-15-384 DATE: 20170419 ONTARIO SUPERIOR COURT OF JUSTICE

BETWEEN: HER MAJESTY THE QUEEN – and – DILLON GORDON NILES

Counsel: Gerard Laarhuis, for the Crown Clyde M. Smith, for Dillon Gordon Niles

HEARD at Kingston: 13 April 2017

REASONS FOR SENTENCING

MEW J. (orally)

[1] On 21 November 2016, Mr. Niles pleaded guilty to two robberies (one of them involving the use of an imitation handgun) arising from separate home invasions which took place at the same dwelling house in Kingston.

[2] The guilty pleas came late in the day after the Crown and defence became aware that a witness, being brought to Kingston from Alberta pursuant to an interprovincial summons, would give evidence highly favourable to the prosecution.

[3] The context in which the robberies took place was a turf war between the accused, Dillon Niles, and three individuals occupying the dwelling house which was robbed, from which they were involved with trafficking marijuana.

[4] Until shortly before the trial, a successful prosecution looked less certain. Identification evidence was concluded to be less reliable than it might otherwise have been because one or more of the victims had viewed Mr. Niles’ photograph on Facebook. Ultimately though, a positive DNA match helped to propel the prosecution.

Circumstances of the Offences

[5] The first robbery occurred between 1 December 2012 and 1 February 2013. After knocking on the front door of a residential house, Mr. Niles pushed his way inside and into the living room. There were three men in the house. Mr. Niles brandished a large knife from the waistband of his trousers, held it behind the head of one of the men, and ordered the victims to sit down and to not move. He took a small quantity of money and marijuana from a cabinet. Before leaving, he told the three victims that he knew that they were weed dealers, but that so was he, and that this was his neighbourhood and that they would have to go to him if they wanted to sell weed in the area. He warned them that if they called the police, that he and his buddies would be coming back.

[6] The victims did not report this incident to the police at the time due to fear of the accused of returning along with the police discovering that they were drug dealers.

[7] The second incident occurred on 16 February 2013 at the same residence. Mr. Niles entered the residence uninvited through the front door. He pulled what appeared to be a black handgun out of his clothing, racked the action, and pointed it in the direction of one of the individuals. He was also holding a reusable black fabric bag from which he produced a roll of duct tape. He ordered the victims to put their hands on their heads and go upstairs. He demanded to know where their drugs and money were. One of the victims turned his head and looked at the back door which was unlocked, at which time Mr. Niles threatened to hit him and raised the gun at the victim as if he was going to hit him on the head with it. The victim made a run for the back door and Mr. Niles gave chase. The victim was able to flee the residence, leaving the other two men inside with Mr. Niles. Mr. Niles then appeared to become panicked and fled the residence through the front door, leaving behind the black fabric bag.

[8] The victims felt that the handgun used by the accused may have been plastic based on the sound it made when the accused racked the action.

[9] The police were contacted as a result of this incident and the black fabric bag left behind by the accused ultimately yielded a DNA match with Mr. Niles.

The Defendant

[10] Mr. Niles is a 26 year old repeat offender. He grew up on Wolfe Island. His parents separated when he was 10. Up to that point, his childhood had been happy. After his parents separated, his mother moved to Ottawa and remarried. Over time, his visits to her dwindled to the point of being almost non-existent. A pre-sentence report describes Mr. Niles as having felt abandoned by his mother, without notice, for an extended period of time.

[11] Mr. Niles did not do well at school. He was angry and began fighting with his peers. He began to associate with the “wrong crowd”. This continued after he started high school. Despite being a talented hockey player, with the possibility of continuing to play hockey at a higher level, his attitude and poor grades lead to him squandering any opportunities that he may have had. He also began experimenting with drugs, primarily marijuana, before his drug use escalated to crystal meth.

[12] He has previous convictions as an adult for assault and possession of marijuana for the purposes of trafficking. As a young offender, he had a conviction for robbery. He has prior experience of terms of incarceration in correctional centres and youth detention.

[13] The pre-sentence report and the submissions made on behalf of Mr. Niles record that he does not place the blame for his actions on his serious addiction to crystal meth, but does attribute the depth of his addiction to his poor decision making. He is ready to accept responsibility for his actions.

[14] Mr. Niles was accompanied by his father in court. He spoke briefly on his own behalf. He conceded that he did not have the greatest past. However, he is expecting to become a father himself in September and said that because of that, the world now looks a lot different. He is self-reproaching that the inevitable period of incarceration he now faces will preclude his involvement in the early months and years of his children’s lives.

[15] Mr. Niles is a roofer by profession, but has recently been working at Kimco Steel.

Pre-Sentence Custody

[16] After his initial arrest, in Alberta, in May 2014, Mr. Niles spent thirteen days in custody. He then spent a further 71 days in custody in 2015 after the withdrawal of his bail surety.

[17] The total amount of time spent by Mr. Niles in pre-sentence custody, therefore, totals 84 days.

Position of the Crown

[18] The Crown observes that the plea was a negotiated one and that part of that negotiation was an undertaking by the Crown not to seek a custodial sentence exceeding four years.

[19] The fact that the targets of the offences were themselves involved in criminal activity, while not a mitigating factor, does form part of the overall context.

[20] Nevertheless, Mr. Niles was involved in two separate home invasion robberies, one with a knife, and the other with an imitation firearm. The use of an imitation firearm while committing an indictable offence engages in section 85(4) of the Criminal Code and requires a minimum punishment of imprisonment for a term of one year to be imposed, to be served consecutively to any other punishment imposed on the accused person for an offence arising out of the same event or series of events.

[21] Furthermore, section 348.1 of the Criminal Code requires the court to consider as an aggravating circumstance the fact that a break and enter offence occurred at a dwelling house which was occupied at the time and that the offence included the use of violence or threats of violence to a person or property.

[22] In R. v. Wright (2006), 83 O.R. (3d) 427, 216 CCC (3d) 54 (C.A.), Blair J.A. noted a broad range of sentencing disposition in “home invasion” cases ranging from as low as four or five years to as high as eleven to thirteen years.

[23] In R. v. Wilson, 2009 ONCJ 468, the accused faced five charges, including one of robbery and an associated breach of probation. The accused was armed with a baseball bat and his two confederates with a tire iron and a knife respectively. Their jackets were zipped up to their chins and they wore hoods. They pushed their way into a house and made off with cash, a mobile phone and a PlayStation. Although there was no gratuitous violence, nor any physical injuries to the victims, there were threats, and the victims were very fearful.

[24] The sentencing judge allocated four years’ incarceration for the robbery charge alone.

[25] The Crown also directed the court’s attention to R. v. Willmott, 2015 ONCA 272 where, in respect of the four and a half year sentence imposed for the appellant’s involvement in two robberies, the Court of Appeal, at para. 9, described the sentence as “at the very low end of the range for a home invasion robbery”. I note, however, that the appellant in that case had a lengthy youth record, with a history of violence and failure to comply with court orders. In one of the robberies which the appellant was convicted of, the victim was hit with a baseball bat and his friend was also assaulted.

[26] In R. v. Loots-Scott, 2015 ONSC 7268, a youthful accused (18 at the time), entered the victim’s home through a basement window, woke the victim up and demanded that he show them where valuables in the home were located. The victim was pushed out of bed and kicked (although it is not clear whether by the accused or by one of the two other male intruders who accompanied him). The intruders entered the victim’s bedroom masked, wearing black clothing, and each carrying a kitchen or butcher knife. The accused had a prior record, including a youth record and was the product of a dysfunctional upbringing. He was sentenced to four years imprisonment, less credit for time served.

[27] The Crown submits that in all of the circumstances, a sentence of four years is warranted.

Position of the Defence

[28] The defence concedes that a minimum sentence of one year will be imposed because of the use of the imitation firearm, as well as a DNA order, and a ten year firearms order under Section 109 of the Criminal Code.

[29] However, having regard to mitigating factors, not the least of which is that this will be the first time Mr. Niles will have been sent to a penitentiary, it is submitted an appropriate sentence would be in the range of 30 to 36 months, less time served.

[30] Although Mr. Niles’ actions were accompanied by the threat of violence, there was no actual contact with anyone with the knife. The victim seemingly realised that the imitation gun involved in the second incident was made of plastic, based on the sound that it made when it was racked.

[31] The cases referred to by the Crown all involve more serious conduct than that presented by Mr. Niles. Features of these cases involved multiple offenders, planning, and usually, some sort of infliction of harm.

[32] The pre-sentence report discloses that Mr. Niles was a gifted athlete who squandered the chances given to him to excel at sport. He did not realise at the time that school was a necessary part of his path to sporting success.

[33] The defence acknowledges R. v. Wright as the leading authority on “home invasion” cases, but emphasises that such cases “call for a particularly nuanced approach to sentencing”, requiring 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: R. v. Wright at para. 24; see also R. v. S.J., 2006 ONCA 800 at paras. 36-38.

[34] In R. v. Shirley, 2009 ONCJ 266, the accused attempted a drug-motivated home invasion while masked and armed with a steel bar. He received a twenty-one month global term of imprisonment, including two twelve-month concurrent terms in respect of attempted breaking and entering and robbery, and three three-month consecutive terms in respect of assault with a weapon, being masked and possession of a concealed weapon, together with a one year period of probation.

[35] In R. v. Wilson, supra, the sentencing judge, in addition to observing that four years fell at the lowest end of the range, observed that appellate admonitions to sentencing judges dispensing “first time” penitentiary sentences urge courts to “proceed on the basis that the shortest possible sentence will achieve the relevant objectives”: R. v. Borde (2003), 63 OR (3d) 417 at para. 36.

Applicable Principles

[36] The general principles of sentencing are set out in Section 718 of the Criminal Code. Judges passing sentence are required by the law to impose a just sanction that has one or more of the following six objectives:

1. To denounce unlawful conduct;
2. To deter the offender and others from committing offences;
3. To separate offenders from society where necessary;
4. To assist in the rehabilitation of the offender;
5. To provide reparation for harm done to victims or to the community; and
6. To promote a sense of responsibility in offenders, and acknowledge harm done to victims and to the community.

[37] The sentence must be proportionate to the gravity of the offence and to the degree of responsibility of the offender. It should also be similar to those imposed on similar offenders, for similar offences committed in similar circumstances.

[38] The appeal in R. v. Borde appears to have turned principally on a concern that the trial judge did not give proper consideration to the appellant’s youth – eighteen – at the time that the offences were committed. The court noted, at para. 36:

Aside from the gravity of the appellant’s crimes [the accused pistol-whipped his victim with a loaded handgun, which discharged, although the victim was not injured by the bullet], the overwhelming factor is his youth. In my view, the trial judge erred in principle in focusing almost exclusively on the objectives of denunciation and deterrence, given the appellant’s age, and that this was his first adult prison sentence and his first penitentiary sentence. The length of a first penitentiary sentence for a youthful offender should rarely be determined solely by the objectives of denunciation and general deterrence. Where, as here, the offender has not previously been to penitentiary or served a long adult sentence, the courts ought to proceed on the basis that the shortest possible sentence will achieve the relevant objectives.

Discussion

[39] Mr. Niles put it well in his own words when he acknowledged that he did not “have the greatest past”.

[40] He is in good physical shape. His history indicates that he is no stranger to inflicting physical violence. Whether or not previous episodes of violence have been fueled by drugs, one can well imagine that, brandishing a knife on one occasion and what looked like a gun on the other, he would have struck fear into his victims.

[41] The concerns associated with home invasions are described in the following oft-cited extract from the decision of Trafford J. in R. v. Soares at para. 286:

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.

[42] As the Crown concedes, while not a mitigating factor as such, the fact that the circumstances of this case involve the intrusion by Mr. Niles into a dwelling house which was being used for marijuana trafficking purposes by his competitors in that business distinguishes this case from others in which the “my house is my castle” sentiment is more apt.

[43] Mr. Niles has remained drug-free since his arrest (a term of his bail) and promised, in a way that I found compelling, a different approach given the new perspective on life that his impending fatherhood has given him. I was also impressed by his choice of words when describing how he felt about what he had done: “remorse, regret and disgust”.

[44] That said, Mr. Niles’ record to date does not bode well for his prospects for rehabilitation. Much will depend on whether he is able to free himself of the scourge of drug use and addiction. But the anticipated arrival of children (twins) and his stated commitment to the parenting of those children does offer an opportunity for Mr. Niles to become a more effective, contributing member of society after his release from prison.

[45] He may well also consider taking the opportunity, while incarcerated and afterwards, to plug some of the gaps in his formal education, that he squandered a decade or more ago.

[46] I have concluded that a term of three years’ imprisonment is appropriate.

Sentence

[47] Mr. Niles, please stand.

[48] On the three counts, 1, 3 and 5 that you have been found guilty of, I sentence you to a term of imprisonment of three years.

[49] In addition, there will be a firearms prohibition order under Section 109 of the Criminal Code for life and a DNA order pursuant to Section 487.04 of the Criminal Code.

[50] As against the three year sentence, you will receive credit for 84 days of pre-trial custody at 1.5 days per day served for a total of 126 days.

[51] I hope that you appreciate that you have been given an opportunity here. The circumstances of your offences could easily have warranted a far more severe sentence. I trust, for your own sake, and for the sake of the children that your girlfriend is expecting, that you will make the most of that opportunity.

Graeme Mew J. Handed down: 19 April 2017 (orally)