COURT FILE NO.: CR-16-70000694-0000 DATE: 2017-05-31

ONTARIO SUPERIOR COURT OF JUSTICE

B E T W E E N:

HER MAJESTY THE QUEEN Stacey Siopis, for the Crown

- and -

CHRISTOPHER GOULBOURNE Luc Leclair, for the Defendant

HEARD: Friday, May 12, 2017, at Toronto, Ontario

REASONS FOR SENTENCE

Michael G. Quigley J.

Overview

[1] Christopher Goulbourne was charged with having committed these four serious offences on December 9, 2014 in the city of Toronto (the “home invasion”). They arose out of a home invasion and included charges of robbery while armed with a firearm, use of an imitation firearm while committing an indictable offence, breaking and entering into a dwelling house with intent to commit an indictable offence, and having choked the victim, contrary to sections 343 (d), section 85(2), section 348(1)(b), and section 236 (a) of the Criminal Code, [1] respectively.

[2] Only two weeks earlier, however, Mr. Goulbourne was one of the alleged perpetrators of an armed robbery of the TD Bank located at 49 Lapsley Road in Scarborough on a sunny Sunday afternoon (the “bank robbery”). He was arrested for that robbery on December 16, 2014, a week after this offence, and denied bail.

[3] On January 27, 2015, seven weeks later, Mr. Goulbourne was in custody at the Toronto East Detention Centre (TEDC) for that bank robbery, when he was arrested and charged that day with these new home invasion offences. As a result, he was required to attend at College Park the following day for his first appearance on these charges. He alleged that while he was in custody at the College Park Courthouse he was assaulted and “beaten” by correctional services and court services officers.

[4] He was tried on the bank robbery charges in the Ontario Court of Justice, convicted of robbery with a firearm and wearing a disguise, and on November 17, 2016, Justice K. Doorly sentenced him to seven years in the penitentiary, less three years’ credit for two years of pre-trial custody on an enhanced basis.

[5] On April 13, 2017, Mr. Goulbourne pleaded guilty before me on the home invasion charges. He pleaded guilty to simple robbery, use of an imitation firearm, and breaking and entering relating to the home invasion charges. The last charge of choking was withdrawn by the Crown. The parties prepared and submitted an Agreed Statement of Facts for these offences.

[6] Mr. Goulbourne then commenced his section 7 application to stay the home invasion charges on the basis that he was assaulted without reason by court officers at the College Park Courthouse and that police failed to investigate that incident. He claimed those actions and inactions violated his rights under section 7 of the Canadian Charter of Rights and Freedoms, and on that basis claimed a stay was warranted as the only appropriate remedy against this alleged violation of his Charter rights. I dismissed that application. My reasons are published at 2017 O.J. No. 2653.

[7] As a result, the issue on this sentencing hearing now is what is the fit sentence for this repeat offender in all of the circumstances for this serious home invasion robbery with an imitation firearm.

Summary of Background Facts Relating to the Offence

Circumstances of the Offences and Victim Impact

[8] The Agreed Statement of Facts on the underlying offences establishes that on Tuesday, December 9, 2014, just before 9:00 p.m., police were dispatched to a robbery/home invasion call at 257 Sherbourne Street, Apt #328. Once on scene, officers spoke with the victim, Michael Granderson. Mr. Granderson told police that at approximately 8:30 p.m. he was sitting at his computer listening to music when he heard a knock at his front door. He ignored the knock since he was not expecting a visitor. Approximately two minutes later he heard knocking for a second time. As he went toward his front door, it was kicked in.

[9] Four males entered his apartment. Those males were later identified as Kesworth Bassaragh, two youth offenders who cannot be identified, and the applicant, Christopher Goulbourne. Mr. Bassaragh produced a handgun, pointed it at the victim and repeatedly threatened to shoot him. Mr. Goulbourne demanded money, jewelry and other valuables while the gun was pointed at the victim. As the victim began to hand over his property, he was punched, kicked and choked by Mr. Goulbourne. The youth offenders searched the victim’s residence for other valuables, taking a number of baseball hats and the victim’s running shoes.

[10] In order to try to escape, the victim told the males that he had some money by his laptop computer located at the rear of his apartment near the patio door and balcony. When given the opportunity to retrieve that money, the victim ran for his balcony and jumped over the ledge. He waited for the four males to leave his apartment before pulling himself back up over the ledge onto his balcony. He then went to his neighbour’s apartment and called 911.

[11] Officers attended the scene and located surveillance video of the lobby, exit points and the elevator area of the building. The surveillance video shows the four males waiting in the vestibule area of the lobby at approximately 8:23 p.m. None of the four males were masked. Their faces, and specifically Mr. Goulbourne’s face, were readily observable on the security footage. None of the males were guests of any of the tenants in the building.

[12] The video shows the same four males loitering in the vestibule area until a tenant with a fob access key opened the security door. The four males then followed the tenant into the building. They were observed taking the elevator to the 3rd floor – the floor where the victim lived. At approximately 8:44 p.m., the same four males are seen on the surveillance video fleeing the building down a set of stairs and out a side exit. One of the youth offenders had a pair of the victim’s shoes in his hands as he exited. The shoes were later recovered from his home after the execution of a search warrant.

[13] A number of baseball hats stolen from the victim during the home invasion were discarded in the stairwell from which the four males exited as they made their escape. The baseball hats were recovered in that stairwell.

[14] On arrest, one youth offender gave a statement to police corroborating the victim’s version of events. Surveillance stills from 257 Sherbourne Street were shown to him. He identified himself, the other youth and Kesworth Bassaragh from the images. Following his arrest, Kesworth Bassaragh also provided a statement to police. Mr. Bassaragh identified himself in the surveillance stills from 257 Sherbourne Street.

[15] The stolen property included an 18 karat gold bracelet with an eagle pendant on it valued at $1,500.00, a silver ring with diamonds valued at $600.00, a cell phone valued at $150.00, and the pair of running shoes. As a result of the assault, the victim suffered soreness to the right side of his face and the right side of his ribs, but he did not require medical attention.

[16] The victim, Michael Granderson, filed a victim impact statement. It will not come as a surprise that this offence has had a very serious impact on him. He was on disability at the time of the offence, and in his own words, trying to supplement his life as a fashion designer by making clothes, but he can no longer do that because the sewing machine that he used for that purpose was irreparably damaged during the robbery and he can no longer afford to purchase a new one as the old one is beyond repair. He no longer has the pleasure of that recreational and potential commercial activity. He already suffered from medical conditions at the time of the home invasion, but certainly while there is no evidence that the circumstances of that event exacerbated his medical conditions, he maintains that he continues to experience a steady flow of headaches and additional body pains following this assault.

[17] Mr. Granderson wrote in his statement that he wakes up every morning and reminds himself that his attackers won’t be able to hurt him anymore. Nevertheless as he states:

It hurts me emotionally and physically to even get out of bed in the mornings. My attackers left me with the habit of putting on the chain lock on my door constantly. Any unusual sound in my home causes me to shake in fear. I can’t sleep at night without having nightmares of my attackers and the incidents. This incident forced me to move from my home of 16 years because of safety concerns. Now I live in seclusion afraid to socialize and trust. I so desperately want my life back, the life I had before they invaded my home and robbed me from my safety and security.

[18] Clearly the result could have been a lot worse. Mr. Granderson jumped off of his third-floor balcony but he did not fall to the ground, instead grabbing onto the bars of the balcony railing and holding himself suspended like that for some time until the robbers left his apartment. Notwithstanding the injuries he sustained during the robbery, he managed to find the strength to pull himself back up over the balcony railing once they departed. Were it not for that, he would have fallen those three floors and either been killed or seriously and perhaps permanently injured. Plainly, the impact of these offences has had a serious and likely permanent psychological impact on the victim’s life, a life that could well have been much more seriously impacted absent his own strength and will to survive. Equally plainly, as defence counsel concedes, the circumstances of the crime are an aggravating factor that demand general and specific deterrence.

Circumstances of the Offender

[19] The offender was born in Toronto on August 22, 1989 and is presently 27 years old. He has a lengthy criminal record. His parents were born and grew up in Jamaica. They met in Toronto and had a brief relationship but he was born and raised by his mother alone. His father returned to Jamaica. At five years of age he was sent to live in Jamaica for two years with his father and his girlfriend and two children from another relationship. When he came back to live in Toronto at age seven, he lived with his mother but she was violent towards him. When he was eight years of age a schoolteacher noticed that his hand was cut and contacted the Children’s Aid Society. He was apprehended and put in foster care for about three months, and then placed in a couple of group homes. At ten years of age, he was sent to live with his aunt, Valerie Stanley, in Malvern. She had no children of her own but was married. Her husband had a daughter who had five children. They all lived in his great aunt’s house and he went to live with them until he was 13. He felt resentment from his aunt’s husband and his grandchildren, was isolated, and did not do well in school.

[20] He was then placed in a series of group homes in Scarborough, Brampton, Burkes Falls, Toronto, Tweed, Whitby, Madoc and back to Whitby, before being allowed to live independently at age 16. At that time, he rented a room in his great-aunt’s basement and enrolled himself in school in Whitby. After he was apprehended by the Children’s Aid Society his mother moved back to Jamaica but he does speak to her from time to time.

[21] He has been in a relationship with Nicole Jones since 2013. They do not have any children together, but Ms. Jones has five children ranging between three and 12 years of age. They reside with her. They appear to have a positive relationship and plan to get married, albeit they do not know when because of his present incarceration. In 2015, while in custody, his former outreach worker determined that he was eligible for the Forgiveness Project. He had involvement in that project which resulted in the publication of a book called “Manhood: Chronicles of Sex, Strength and Identity.” Samples of his writings were provided to me along with his affidavit, samples that show some literary promise. Most importantly, from a positive perspective, while in custody Mr. Goulbourne has completed the equivalency of grade 12 and received a certificate from the Ministry of Education, that he also successfully completed three workshops involving Communication Skills, Self-esteem, and Anger Management.

[22] Mr. Goulbourne hopes for the future to become trained as a skilled labourer and to work in that field to support a family. He also hopes to reconnect with family members who live in Jamaica. He is supported in those efforts by his partner, Nicole Jones.

[23] Ms. Jones is 31 years of age with no criminal record. Neither do any other members of her family. She has five children, as noted, a high school diploma, and in 2016 successfully completed a program in administration at the YWCA. She is presently job searching and doing workshops through social assistance to give her practical experience. She met the offender in 2013. They became friends and then the bond got stronger and they decided to pursue a relationship together. She attests to the offender being very interactive with the children and an amazing and supportive partner. She expressed no concerns with his behaviour or character, and confirms that he has never been violent towards her or towards the children. She acknowledges that they plan to be married. She has known for a long time of his criminal record, but claims that he is on a different path now and trying to right his wrongs and plan for the future. She visits him on a weekly basis at the TEDC and talks to him almost daily. She also writes letters and sends cards to which he responds. She describes their communication as very strong.

[24] Unfortunately, despite those strengths and positive indicators, this offender also has a lengthy and increasingly serious criminal record. He began offending as a youth. He accumulated convictions under the Youth Criminal Justice Act for assault with a weapon, uttering threats, three mischief charges, break and enter and theft, robbery and escaping lawful custody, all as a youth. As an adult, he has added to that record with six fail to comply convictions, a conviction for obstructing a peace officer, and more importantly, convictions for two robberies, one with a firearm while wearing a disguise before this home invasion robbery, one for theft under $5,000, and one for unauthorized possession of a firearm.

[25] His longest sentence before the TD Bank robbery was 17 months, but, as noted, he is now serving a seven-year penitentiary sentence for that robbery. The circumstances of his offending pattern are repeating and becoming more violent. It is a record that is also becoming increasingly brazen involving greater propensity towards violence. This is made plain by the Agreed Statement of Facts in this case, and by the circumstances of the bank robbery that he committed only two weeks before the home invasion offences. That is evident from Justice Doorly’s recitation of the circumstances surrounding those offences, offences that were subject to a mandatory sentence of four years in the penitentiary:

The robbery was a brazen one. On November 24, 2014, the accused and an accomplice armed themselves, disguised themselves and then strode into a TD bank on a busy Sunday afternoon, demanding that everyone get to the ground. Dozens of people were there. Adults with elderly parents, a dad cradling his baby, and another dad hoping to open his 11-year-old daughter’s first bank account.

The customers and employees all go to the ground as ordered. The surveillance video showed the accomplice focusing his pistol on the customers while Mr. Goulbourne is seen striding, boldly, towards the teller’s counter with a shotgun. He hurdles the counter and demands $5,000. The tellers, who are understandably nervous, have difficulties punching in the right codes to withdraw the cash. Ultimately, one of the tellers gets up off the floor and asked if she could do the withdrawal. The accused puts the shotgun in the small of her back and tells her yes.

He is given $1,500, which he stuffed in a bag and jumps back over the counter and then he and his accomplice leave.

Fortunately, the dad with the 11-year-old turned around and got out of the bank when they saw the robbery in progress.

[26] As this recounting of that event shows, when combined with the circumstances of these home invasion robbery offences, and remembering that he has 20 adult offences beyond his numerous youth offences, it is evident that this offender has a serious and materially aggravating criminal record, one that increasingly shows pattern and indifference to the harm that his actions may cause to others.

Legal Parameters

Positions of the Crown and the Defence

[27] The position of the Crown is that a sentence of eight years’ imprisonment is warranted on the home invasion convictions, in addition to the seven-year sentence Mr. Goulbourne is presently serving for the bank robbery. She also seeks (i) a DNA order as this is a primary designated offence, and (ii) a s. 109 weapons prohibition for life given that a prior ten-year weapons prohibition order was breached.

[28] Crown counsel asserts that Mr. Goulbourne should receive no credit for pre-sentence custody in this matter as he already received credit for his pre-sentence custody when Justice Doorly sentenced him on the bank robbery. Relative to the proposed length of sentence sought, in asking for the imposition of a sentence of eight years, Crown counsel contends that the seriousness of this matter actually calls for a sentence of ten to twelve years, and that she would be seeking a sentence of that duration absent the application of the totality principle.

[29] Counsel for the defence argues in favour of a sentence of three years’ imprisonment, the minimum that could be imposed here since the firearms offence itself carries a minimum mandatory three-year sentence. However, insofar as the Code requires that the sentence for that offence be imposed consecutive to the other sentences the offender receives for the offences arising out of the same event or series of events, this effectively amounts to him asking that the offender be sentenced to no time for the charges of robbery while armed with a firearm and breaking and entering. Defence counsel also claims that is a fit sentence after giving Mr. Goulbourne further credit in sentencing for these events for the pre-sentence custody credit that was already factored into the sentence imposed by Doorly J. for the armed bank robbery. Finally, defence counsel claims that this is the appropriate sentence having regard to the principles of totality to ensure that the aggregate sentence Mr. Goulbourne faces is not crushing for him.

Principles of Sentencing

[30] Section 718 of the Criminal Code states the fundamental purposes of sentencing and lists its underlying objectives. The fundamental purpose of any sentence is to contribute to respect for the law and the maintenance of a just, peaceful and safe society by the imposition of just and appropriate sanctions. Among the specific objectives listed in section 718 of the Criminal Code, several are particularly relevant here. They are to denounce unlawful conduct, to deter the offender and others from committing offences and to separate offenders from society where necessary. In a case such as this, general deterrence to others, specific deterrence of this offender, and the protection of the safety of the public are paramount considerations in deciding what sentence to impose.

[31] Nevertheless, the appropriate sentence for any given offender will always depend on a number of factors, including the age of the offender, his prior record, the possibility of rehabilitation, and account being taken for any relevant aggravating or mitigating circumstances.

[32] When looking at the sentence of an accused person, the Court must also strive to respect the principles of proportionality and consistency of sentence for similar offences in the sentence imposed in the particular case. Proportionality requires that a sentence speak out against the offence, but not exceed what is just and appropriate given the moral blameworthiness of the offender and the gravity of the offence.

[33] Subject to specific statutory rules, like the imposition by Parliament of mandatory minimum sentences for particular crimes as is the case in this matter, the determination of a fit sentence is an individualized process. It calls upon me to weigh the objectives of sentencing in a manner that best reflects the circumstances of the case. It recognizes that aggravating or mitigating factors will increase or decrease the appropriate sentence for otherwise similar offences. [2] A sentencing judge must impose a sentence that is specific to the nature of the offence and the circumstances of the offender, following limits and ranges imposed by the case law in order to try to encourage consistency in sentencing.

[34] Finally, there is the principle of totality. Section 718.2 of the Code states that a court is also to take into account the principal that where consecutive sentences are imposed, the combined sentence should not be unduly long or harsh. As Ruby describes it in his seminal text on Sentencing [3], the totality principle is simply a particular application of the general principle of proportionality. Where consecutive sentences are imposed, it requires the sentencing judge to ensure that the cumulative sentence does not exceed the overall culpability of the offender. It requires that the sentencing judge consider the total impact of the sentence that is proposed relative to the gravity of the conduct of the specific offender.

Case Law

[35] The Crown refers to a number of decisions as establishing the framework that guides her to requesting the proposed sentence of eight years’ imprisonment as appropriate. These include R. v. Harriott, 2002 ONCA 23588, [2002] O.J. No. 387, R. v. D.W., [2004] O.J. No. 5825, R. v. Wade Wright, 2006 ONCA 40975, [2006] O.J. No. 4870, R. v. Mann, 2010 ONCA 342, [2010] O.J. No. 1924, R. v. Wills, 2014 ONCA 178, [2014] O.J. No. 1069, R. v. Kareem Wright, 2015 ONSC 4508, [2015] O.J. No. 3750 and R. v. McIntyre, [2016] O.J. No. 6202.

[36] These cases establish a “range”, if it can be called that, from a low of five to six years’ imprisonment in R. v. Kareem Wright and R. v. McIntyre, to a high of ten to thirteen years in Harriott, D.W, and R. v. Mann.

Mitigating and Aggravating Factors

[37] There are important aggravating factors present here. This was a planned home invasion and the offender was one of the two principal actors in executing it. The offender punched, kicked and choked the victim and a firearm was pointed at the victim, a vulnerable person, and the perpetrators threatened to shoot him in the context of demanding that he deliver his personal property to them.

[38] Moreover, there is this offender’s very serious prior record, two and a half pages in length, that includes violent crimes starting with an assault with a weapon when the offender was still a youth and progressing to robberies as an adult in 2008 and 2016, the last offence being with a firearm, a shotgun, when he robbed the TD Bank in 2016 two weeks before this home invasion was perpetrated. In addition, he committed a break and enter offence in 2008 and was convicted of possession of a firearm in 2011. Until he was sentenced for the bank robbery, his highest prior sentence was 19 months’ imprisonment, but nevertheless, he proceeded on to commit more brazen, serious and violent crimes, plainly showing a failure to learn from his prior conduct and sentences. There is plainly a pattern here of accelerating and unrestrained violence that is seriously aggravating in nature.

[39] There are also mitigating factors present, although less weighty than the aggravating circumstances. They include the offender’s plea, although that might have been made in the face of an inevitable conviction given that the agreed statement of facts records that surveillance video footage of the lobby, exit points and the elevator area of the building shows the four males waiting in the vestibule area of the lobby at approximately 8:23 p.m., that none of the four males were masked, and that their faces, and specifically Mr. Goulbourne’s face, were readily observable on the security footage.

[40] Nevertheless, by his plea, Mr. Goulbourne did take responsibility for his actions and avoid the need for a vulnerable and shaken victim to testify a second time at trial. Further, he has expressed remorse for his conduct, and regrets that the victim was manhandled and scared. He apologized to Mr. Granderson for his conduct. Further, he has made some positive steps while in custody that may point to a more positive future, including having completed his high school equivalency, and three additional training courses for which he has received certificates. Moreover, he has the support of his domestic partner, Ms. Nicole Jones, who attended the sentencing hearing to show her support for Mr. Goulbourne, and who it is hoped will stand by him during the sentence he must now serve for this offence, in addition to the one he is presently serving.

Reasons

[41] I do not agree with defence counsel that a sentence of only three years’ imprisonment would be fit in the circumstances of this case, even taking account of the fact that it must be served on top of the sentence Mr. Goulbourne is presently serving. I do agree with him, however, that the proper way to determine sentence in a case like this is first to determine what sentence I would otherwise consider fit having regard to all the circumstances, and then reduce it as necessary to give voice to the application of the totality principle.

[42] However, I also disagree with defence counsel’s submission that a minimum sentence ought to be imposed on Mr. Goulbourne for the offences of robbery and breaking and entering. In a case like this where a mandatory minimum sentence must be imposed for the firearms offence, but where the Code stipulates that such sentence must be imposed consecutive to the sentence for the other offences arising out of these events, it would be legally incorrect to simply impose a minimum sentence of one day for the offences of robbery while armed with a firearm and breaking and entering, and then attaching a consecutive mandatory sentence of three years for the robbery and the break and enter offences. They are not de minimis offences, and sentencing in this way would make a mockery of Parliament’s will that in addition to what would otherwise be a fit sentence for those other offences, there must also be a consecutive three-year minimum sentence for the firearm offence as a separate and distinct offence even if arising out of the same delict or event.

[43] This point is made clear by Dubin J.A., later C.J.O., in R. v. Saint Amand, 1982 ONCA 3772, [1982] O.J. No. 73 (C.A.). The Court of Appeal refers to the decision of Dickson J., later C.J.C. in R. v. McGuigan, unreported, and his reference to the decision in R. v. Langevin (1979), 1979 ONCA 2999, 47 C.C.C. (2d) 138 where Martin J.A. stated, in part, as follows:

It is clear to me that Parliament intended by s. 83 to repress the use of firearms in the commission of crimes by making such use an offence in its own right, and one which attracts a minimum sentence of one year consecutive to that imposed for the offence which such use accompanies. The use of firearms in the commission of crimes is fraught with danger and gravely disturbing to the community, and Parliament has sought to protect the public from the danger and alarm caused by that use by enacting the present legislation. It is not for the Courts to pass upon either the wisdom or the necessity for the legislation, but to give effect to the clear intention of Parliament expressed in language which reflects that intention.

Manifestly, the legislation is directed at those crimes in which firearms are likely to be used, such as robbery, and not offences where they are not likely to be used, for example, forgery. To construe the section as not applicable to the use of a firearm during the commission of the offence of theft while armed with a firearm would largely defeat the clear intention of Parliament.

[44] These authorities establish that I must first determine a fit sentence for Mr. Goulbourne for the robbery and break and enter offences and then add on to that, as a consecutive sentence, the mandatory minimum sentence of three years’ imprisonment that the repeat nature of the firearm offence requires.

[45] However, it is also true that the principle of totality must then be applied to the total sentence the offender is facing and it must take account of the sentence Mr. Goulbourne is already serving arising out of the armed robbery of the TD Bank in Scarborough.

[46] In R. v. Parry, 2012 ONCA 171, exactly this question was at issue although that case involved a sentencing of an offender in somewhat more complex circumstances. The offender was serving a sentence of seven years at the time he decided to come forward and plead guilty to five armed robberies and four other home and commercial robberies involving the use of a weapon other than a firearm and injury to some of the victims. The trial judge imposed four consecutive sentences of four years for each of the four counts of robbery with the use of a firearm and four years for one count of conspiracy to commit robbery. The offender was also sentenced to a consecutive sentence of two years in respect of his conviction for theft while armed with a weapon. All of these sentences combined produced a total of 22 years in the penitentiary consecutive to the time remaining on the seven-year sentence the offender was serving at the time of his plea - a grand total of approximately 28 years. On the remaining offences for which he pleaded guilty, the appellant received concurrent sentences ranging from one to four years.

[47] Writing for the Court, Armstrong J.A. stated as follows at paras. 17-20:

17 As indicated above, the main issue in this appeal is whether the trial judge erred in his application of the principle of totality. Section 718.2 of the Criminal Code provides that, "where consecutive sentences are imposed, the combined sentence should not be unduly long or harsh". The Supreme Court of Canada in R. v. M.(C.A.), 1996 SCC 230, [1996] 1 S.C.R. 500 at para. 42 discussed the totality principle as follows:

In the context of consecutive sentences, this general principle of proportionality expresses itself through the more particular form of the "totality principle". The totality principle, in short, requires a sentencing judge who orders an offender to serve consecutive sentences for multiple offences to ensure that the cumulative sentence rendered does not exceed the overall culpability of the offender. As D.A. Thomas describes the principle in Principles of Sentencing (2nd ed. 1979), at p. 56:

The effect of the totality principle is to require a sentencer who has passed a series of sentences, each properly calculated in relation to the offence for which it is imposed and each properly made consecutive in accordance with the principles governing consecutive sentences, to review the aggregate sentence and consider whether the aggregate sentence is "just and appropriate".

18 This court has previously held that the principle of totality applies where an offender is sentenced and part of the total term of incarceration includes a pre-existing sentence: see R. v. Cathcart, [1976] O.J. No. 1225 and R. v. Bond, [2005] O.J. No. 108.

19 The sentencing judge in this case referred to the appropriate principles of sentencing, including the principle of totality. He emphasized that a sentence should not be so crushing so as to destroy any hope of rehabilitation. He recognized that the appellant was a candidate for rehabilitation.

20 In spite of the fact that the sentencing judge referred in his reasons to the relevant principles of sentencing, I am of the opinion that a 22-year sentence, consecutive to the remnant of the 7 year sentence the appellant was then serving, cannot be regarded as anything but crushing. In short, it offends the principle of totality.

[48] I agree that a sentence of 22 years consecutive to the seven years the offender was then serving could indeed have been crushing, and that it did offend the totality principle, but I would also observe that nothing of that magnitude is even close to being contemplated here.

[49] The offender here is presently serving the remaining four years, after pre-sentence custody credit of a seven-year sentence. The Crown seeks a total of eight additional years of incarceration for this separate armed home invasion robbery, including a mandatory three years of imprisonment for the firearms offence consecutive to a five-year sentence for the robbery and break and enter offences, which would produce a total of 15 years and a total remaining sentence to be served of 12 years. Crown counsel specifically stated she would otherwise be seeking a total of ten to twelve years for these offences, but that she factored totality into the calculus in arriving at an eight-year submission. I will return to this below.

[50] In my view, the cases most relevant to the determination of sentence here are the D.W and Mann decisions. Both involved home invasion robberies where threats were issued, threats of death in one of the cases, just as the victim was threatened with death here. Both cases involved offenders who had lengthy records for violent conduct involving the use of weapons, specifically firearms. I acknowledge the firearm used in this case was merely an imitation firearm, but that would not likely have been evident to the victim who was in fear for his life. In D.W., Nordheimer J. sentenced the offender to ten years after taking account of pre-sentence custody of two years and in Mann the sentence was 12 years, ten for the home invasion itself and two years for the breach of a firearms prohibition. In my view the gravity of this offence, its increasing evidence of violence and the criminal antecedents of this offender, which demonstrate an increasing pattern of violence and indifference to the effects of his conduct on others, would call for a sentence of at least ten years, absent the principle of totality.

[51] In addition, however, defence counsel claims Mr. Goulbourne should also receive credit for 867 days of pre-sentence custody (to May 12, 2017), even though the offender’s pre-sentence custody that totally overlapped his custody on this matter, except for two weeks, was already taken into account by Justice Doorly in reducing his sentence on the armed bank robbery from seven to four years. I disagree with that submission. Mr. Goulbourne has already received the credit, which R. v. Summers indicates he is entitled to, so it would artificially reduce his sentence to give him credit for that time a second time.

[52] Nevertheless, despite the aggravating factors present here, there are mitigating factors, a plea and acceptance of responsibility and acknowledgement of remorse for his conduct, and there is some evidence of efforts to move forward and improve himself; efforts towards rehabilitation that should weigh in his favour. There is also the presence of a supportive partner, a factor that could, combined with his seeming willingness to turn his life around, also assist Mr. Goulbourne to finally turn away from his violent background and pursue a different road from this point forward. In the result, I have taken account of all of these factors, and the totality principle into consideration in determining what I consider to be the fit sentence in this case.

Ancillary Orders

[53] In addition to the sentence I must now impose on you, Mr. Goulbourne, you will provide a sample of your DNA since this is a primary designated offence and you will be subject to a s. 109 weapons prohibition for life.

Final Decision

[54] Mr. Goulbourne, will you please stand up.

[55] On the two offences of robbery and break and enter, I would otherwise sentence you to serve a sentence of six and one half years’ imprisonment, concurrent, together with a consecutive mandatory minimum sentence of three years for the firearm offence. This would be a total sentence of nine and a half years. Combined with the remaining four-year sentence from the bank robbery, that would require you to serve a total of thirteen and a half years.

[56] However, balancing that result with the principles that a sentence combined with other sentences should not be so onerous as to be crushing, and taking account of the efforts you have made towards rehabilitation and which I hope you will continue to pursue while incarcerated, I have determined that a lesser sentence is appropriate. As such, I find that the appropriate global sentence in your circumstances is a penitentiary sentence that I have determined should be for seven and a half years, two years less than I would otherwise have imposed, in addition to the four-year sentence you are presently serving. Thus, the total time remaining to be served when combining both Justice Doorly’s sentence and this sentence is eleven and a half years of imprisonment.

[57] You need to understand the message that is being given to you today. You may not regard it that way, but relative to what our law prescribes, you have been given a break from what the authorities indicate would otherwise have been a suitable sentence for these offences.

[58] You need to understand these were exceptionally serious offences. There are few crimes under our statutes that approach the gravity of invading a persons home, terrorising them while there, injuring them severely, and seeking to take their property for your own use and benefit.

[59] You are actually fortunate that the victim, Mr. Granderson, only suffered the injuries and trauma that he did, because if he had fallen from the balcony, he could have been killed or maimed for life. If he had been killed, you would be looking at a homicide charge, with a likely term of incarceration well beyond what you are now facing.

[60] You also need to understand that if you are unable to rehabilitate yourself, obtain the training you need and want to receive, and turn to a life of lawful conduct upon your release, should you re-offend as you offended in these circumstances, you could well be facing a far more serious sentence, possibly a dangerous offender application in the future with the prospect of indeterminate detention for the balance of your natural life.

[61] There is very little basis upon which leniency can be shown to you in the future if you do not get the message this time, and act on it diligently.

[62] I do, however, wish you well in that endeavour and encourage you to take the positive track forward that you appear to have started upon, supported by persons who care for you, regardless of how little you have shown care for the person who was the victim of these most recent violent crimes.

Michael G. Quigley J.

Released: May 31, 2017

Footnotes:

[1] Criminal Code, R.S.C., 1985, c. C-46.

[2] R. v. Nasogaluak, 2010 SCC 6, [2010] 1 S.C.R. 206.

[3] Ruby, Clayton et al, Sentencing (Toronto: LexisNexis/Butterworths, 2004), at para 2.58.