Superior Court of Justice
Her Majesty the Queen
v.
Fabricio Calderon
Reasons for Sentence
Before: The Honourable Justice M. Fuerst On: April 12, 2017 at Newmarket, Ontario
Appearances: M. Stewart, Counsel for the Crown D. Smith, Counsel for the Defendant
Wednesday, April 12, 2017
Reasons for Sentence
FUERST, J. (Orally):
THE COURT: Mr. Calderon, along with three other men, committed a home invasion that involved the assault of the residents of the home, with the intent to steal from them. Although nothing in fact was taken, that was due to the fact that the perpetrators were looking for a safe, which actually was in a house next door. The perpetrators had gone to the wrong address.
Nonetheless, they inflicted serious injury to the male who lived in the home they invaded, including a broken ankle and a collapsed lung, and they tasered the female resident. The incident can only be described as shocking and horrifying.
The Court of Appeal for Ontario pointed out in R. v. Wright (2006), 83 O.R. (3d) 427, at paras. 4 to 7, that the objectives of sentencing in cases of home invasion are protection of the public, general deterrence, and denunciation. In this case, I also consider specific deterrence. Given Mr. Calderon’s long and serious criminal record, rehabilitation has little role to play, although I do not ignore it completely.
The aggravating factors include:
The home invasion was perpetrated at night.
A weapon was used.
There was reference by the perpetrators to a gun. Even though there is no evidence that a gun was present, I find that the reference to it was an attempt by the perpetrators to intimidate the victims.
Mr. Benson was very seriously injured. Mrs. Benson was tasered. Both Mr. and Mrs. Benson were psychologically impacted by the home invasion, as were the intended targets, the Gertleys.
Notwithstanding that the perpetrators went to the wrong address, the home invasion involved a high degree of planning and sophistication.
This was a group enterprise, which increased the intimidation factor.
Mr. Calderon has a long and significant criminal record that includes a previous conviction for armed robbery. He was bound by a lifetime weapons prohibition order at the time of the home invasion.
There is little to be said in mitigation. Mr. Calderon pleaded guilty. Although this was not an early guilty plea, it is a sign of remorse, and willingness to accept responsibility for his actions. He apologized to the victims in court.
He has some measure of family support through his fiancée, although she has made it clear that he cannot have a future with her if he continues a life of crime.
Were I sentencing Mr. Calderon after a trial, I would have no hesitation in imposing a penitentiary term of 10 years or more. I am satisfied, however, that on this guilty plea, a sentence of 8 years in jail, jointly suggested by Crown and defence counsel, serves the relevant objectives of sentencing, and reflects the significant aggravating factors of the offences.
Mr. Calderon, please stand. On count one, I sentence you to 8 years in the penitentiary, less credit of 45 months for your 30 months in pre-sentencing custody, calculated at 1.5 to 1. This leaves a sentence to be served of 51 months in jail.
On count three, I sentence you to 51 months in jail concurrent.
There is a DNA order and a section 109 order for life on both counts. Thank you. You can have a seat. Is there anything further, Mr. Stewart, Mr. Smith?
MR. STEWART: Would Your Honour consider an order with respect to contact or lack thereof with...
THE COURT: Yes.
MR. STEWART: ...Stanley Benson, Kathleen Benson, Enza Gertley, and Doug Gertley, please?
THE COURT: Yes. Under section 743.21 of the Criminal Code, there will be that order of non-communication for the period that Mr. Calderon is in custody. Anything further, Mr. Smith?
MR. SMITH: Not that I can think of, Your Honour.
THE COURT: And the other counts, Mr. Stewart, in respect of Mr. Calderon?
MR. STEWART: Withdrawn.
THE COURT: All right. Just give me a moment to endorse the indictment. Can you just give me the name of the Gertleys again please, Mr. Stewart?
MR. STEWART: Yes. Enza, E-N-Z-A, Gertley, G-E-R-T-L-E-Y.
THE COURT: Yes.
MR. STEWART: And Doug Gertley.
THE COURT: Thank you. I’ve endorsed on the indictment, Mr. Calderon re-elects trial by judge alone. He pleads guilty to counts one and three. He is found guilty on both counts, and convictions are recorded.
He is sentenced on count one to 8 years in jail, less 45 months for pre-sentencing custody of 30 months, credited on a 1.5 to 1 basis, leaving a sentence to be served of 51 months.
On count three, he is sentenced to 51 months concurrent.
There is a DNA order and a lifetime section 109 order on both counts. There is a section 743.21 order in respect of Kathleen Benson, Stanley Benson, Enza Gertley, and Doug Gertley. All other counts against Mr. Calderon are withdrawn at the request of the Crown. The June and July 2017 dates are vacated as against Mr. Calderon only. They remain in place for the co-accused.
MR. STEWART: Thank Your Honour.
THE COURT: Thank you.
MR. STEWART: And I thank my friend as well.
THE COURT: All right. Thank you.
MR. SMITH: Your Honour, it’s more appropriate for the warrant of committal itself...
THE COURT: Yes.
MR. SMITH: ...that the recommendation for British Columbia.
THE COURT: I’m sorry. I recommend - and we’ll show that on the warrant, but I’ll also put it on the indictment – I recommend that the sentence be served in British Columbia. Thank you. We’ll put that on the warrant please, Madam Registrar.
COURTROOM REGISTRAR: Yes, Your Honour.
THE COURT: Thank you.