Court File No.: CR-16-500000658 Date: 2017-06-28 Ontario Superior Court of Justice

Between: Her Majesty the Queen – and – Vladimir Hussain-Marca, Defendant

Counsel: K. Rogozinski, for the Crown D. Heath, for the Defendant

Heard: June 28, 2017

Reasons for Sentencing S.F. Dunphy, J.

Introduction and Overview

[1] On March 28, 2017, I found the accused Mr. Vladimir Hussain-Marca guilty of one count of break and enter contrary to s. 348(1)(d) of the Criminal Code and one count of robbery of Mr. Phu Pham contrary to s. 344(1)(b) following a trial before me as judge alone. The charges arise from what may fairly be described as a home invasion incident that occurred at an apartment at 210 Woolner Avenue # 213 on October 21, 2014.

[2] Mr. Hussain-Marca came before me for sentencing on June 28, 2017. Fortunately, the Crown and Defence were able to agree on a joint position. After hearing the submissions of the parties and hearing from the accused in person, I decided to adopt the joint submissions made to me and sentenced Mr. Hussain-Marca accordingly. I undertook to deliver brief written reasons for doing so as soon as practicable. These are those reasons.

[3] The joint position of the parties and the sentence ordered by me was as follows:

a. A custodial term of three years less credit for pre-sentence custody at the rate of 1.5:1 (for a total credit of 587 days); b. Probation of 18 months on agreed terms; c. A s. 109(2)(a) Criminal Code weapons prohibition order of 20 years; and d. A DNA order pursuant to s. 487.051 of the Criminal Code.

[4] The application by the Defence for additional credit for pre-sentence custody by reason of the conditions at Toronto South Detention Centre was not proceeded with, both parties recognizing that the custodial sentence appropriately takes this into account without further adjustment.

Circumstances of the Offences

[5] The circumstances of the offences are detailed in my oral reasons delivered on March 28, 2017. I shall only summarize them here.

[6] The evidence accepted by me established that Mr. Hussain-Marca drove to an apartment building complex in Toronto located at 210 Woolner. In addition to Mr. Hussain-Marca, there were two other passengers in the car.

[7] The three young men were captured on video surveillance cameras leaving the car and heading across the parking lot towards the building at 210 Woolner. They were wearing latex gloves.

[8] Mr. Hussain-Marca was observed on the security video from the floor taking up position to knock on the door of Apartment #213 while the other two hid out of sight. After the door was opened a crack in answer, Mr. Hussain-Marca and one of his companions rushed the door and forced their way in. The third companion emerged from his hiding spot in the stairwell and followed them into the apartment a few seconds later. The time was about 9:24 p.m. according to the time stamp on the hallway camera.

[9] The three were in the apartment for eight minutes.

[10] There were two men who lived in the apartment: Mr. Huu Pham and Mr. Phu Pham (unrelated despite their names). They were co-workers at a factory had become friends and were sharing rent. Mr. Phu Pham had a family in Vietnam.

[11] During the eight minutes the trio were in the apartment, they terrorized the occupants. The apartment was ransacked and some items were taken – alcohol, beer, a laptop computer and a cell phone. The two tenants were threatened. They were asked to turn over “the money”. Mr. Phu Pham was struck with what appeared to be a gun and suffered a serious gash to his head. Mr. Hu Pham was also struck. The Crown has not proved beyond a reasonable doubt that the weapon used was a real gun so, for present purposes, I must assume it was an imitation. Both were ordered to lie on the floor face down in the kitchen while more searching took place. The invaders then left.

[12] Security footage captured the three men leaving the building with their stolen loot. Mr. Hussain-Marca retrieved the cars, picked the other two up and drove away. He was able to be traced by way of the license plate on the car he drove that an alert security guard had recorded. He was picked up after returning home with the car. Police were waiting and arrested him soon afterwards. Some of the items stolen were found in the car when it was searched.

[13] After the robbery, Mr. Huu Pham left the building before police were called and spent several days with a friend nearby. He had a prior record which may explain his reluctance to let police know that he had been present at the time of the robbery. Indeed, his existence as a second victim was not discovered until shortly before trial. He was clearly a reluctant witness and his actions and demeanor on the stand confirm the fear that this incident caused in him and continues to cause.

[14] Mr. Phu Pham was unwilling to come back from Vietnam to testify at the trial.

[15] As the foregoing summary indicates, the robbery was of a residence. It was a robbery of the sort appropriately described as a home invasion. There were signs of planning and deliberation. The occupants were threatened and terrorized. Both were struck and Mr. Phu Pham at least was stuck with some severity, requiring stitches.

Circumstances of the Offender

[16] Mr. Hussain-Marca is now 22 years old. He was 19 at the time of the offence. He is a first time offender.

[17] There is little in his background that one could point to as a contributing factor. He graduated from high school. He pursued continuing education. He had been employed at an optical outlet before being incarcerated. His employer thought highly enough of him to write a support letter and extend an open offer to re-employ him.

[18] He has sought to connect with his cultural roots by working with an Ecuadorean-Canadian cultural group. He has participated in his church and had a support letter from his parish priest as well.

[19] He was living with his mother and younger sister at the time of the incident. He was (and is) very close to his younger sister who looked up to him. He is missing her high school graduation due to his incarceration. He is aware of the degree to which he has disappointed her.

[20] And then there is his mother. She has been present in court for every appearance. The pain etched on her face listening to the details of the offence with which her son was charged was patent. This knowledge of this too is a burden that Mr. Hussain-Marca must bear.

[21] While Mr. Hussain-Marca is keenly aware of the pain that he has caused his family, I am just as keenly aware of the benefit to a candidate for rehabilitation that a strong and supportive family can bring. He is fortunate to have this support. He would do well not to take it for granted.

Victim Impact

[22] While I do not have the advantage of a victim impact statement, I did have the testimony of Mr. Huu Pham at the trial and acquired a vivid picture of how traumatic and indeed terrorizing this incident must have been for him.

Applicable Principles

[23] The objectives to be pursued in determining an appropriate sentence are set forth in s. 718 of the Criminal Code and include denouncing unlawful conduct, deterring offenders and others, rehabilitating offenders, promoting a sense of responsibility in offenders and generally contributing to crime prevention, respect for the law and the maintenance of a just, peaceful and safe society.

[24] Another principle to be applied is that of proportionality. The sentence must be proportionate to the gravity of the offence and the degree of responsibility of the offender: Criminal Code, s. 718.1.

[25] I must also have regard to s. 348.1 of the Criminal Code that mandates that a conviction under s. 348 of the Criminal Code in relation to a dwelling house shall be considered an aggravating circumstance as is the fact that violence or threats of violence were employed. Make no mistake, this offence was a home invasion and must be sentenced having regard to the principles applicable to home invasion cases.

[26] Section 718.2 of the Criminal Code also requires me to take into consideration that a sentence should be similar to sentences imposed on similar offenders for similar offences. In this regard, I was advised that a co-accused who pleaded guilty and was sentenced separately received a sentence of 27.5 months of custody plus probation.

Aggravating and Mitigating Circumstances

[27] I consider the following to be aggravating circumstances in this case:

a. The planning and deliberation that went into the commission of the offence; b. The active role played by Mr. Hussain-Marca in driving the car to and from the crime and in being the one who knocked on the door and helped in the initial surge to gain entry indicates a high degree of responsibility; c. The use of violence and threats of violence during the commission of the offence (including a pistol not proved to have been genuine); and d. The fact that the crime involved the violation of a dwelling house and s. 348.1 of the Criminal Code.

[28] I consider the following to be mitigating circumstances in this case:

a. Mr. Hussain-Marca’s youth (19 at the time of the offence); b. The fact that he is a first time offender; c. His sincere expression of regret and remorse and his desire not to let his family down again; d. His prospects for successful rehabilitation owing to: i. Strong family support; ii. His pursuit of higher education after his arrest; iii. Strong support from his former employer (and a desire to have him back); iv. Support letters from teachers, his church and an Ecuadorian community group that he is active in; and v. His diligent pursuit of rehabilitation through such courses as he has been able to complete while in custody.

Conclusion re: Sentence

[29] Mr. Hussain-Marca’s letters of support suggest that he has work, church, school and cultural group support to fall back on. They also paint a portrait of what might have been and what might yet be in terms of the life outcomes for this young man. His choices have been deplorable. Nevertheless, these letters, and the transcript of his course at Centennial College all speak of a young man with a bright personality and potential that may yet be realized. No one can be said to be all good or all bad. Undoubtedly Mr. Hussain-Marca has a measure of both sides in his make-up. There is enough good that others have found in this man to leave me hope that his better side may yet prevail.

[30] He has shown genuine insight into what has gone wrong and a real desire not to let his family down. He has sought to avoid conflict or trouble in custody and his record suggests that he has been successful. He has a younger sister with whom he is very close who was graduating from high school today. His disappointment at missing that event was clear as was his determination not to let his family down again. His mother has stood by him at every appearance and I can only imagine the grief this experience has inflicted upon her. I know that Mr. Hussain-Marca knows and appreciates this.

[31] Mr. Hussain-Marca’s status as a first-time and still youthful offender also militates in favour additional weight being given to the prospects for rehabilitation and thus a sentence at the low end of the range.

[32] The prospect of rehabilitation must be given serious consideration and weight.

[33] On the other hand, the offence is a particularly serious one. Home invasion is a violent crime. The psychic scars it leaves can be profound – if one is not safe at home, then where? The planning and deliberation demonstrated, the violence shown: all of these are very serious aggravating circumstances. However, the prospects for rehabilitation seem good and ought not to be entirely sacrificed on the altar of denunciation.

[34] I have reviewed the precedents cited to me by the parties. It is clear to me from the authorities that a penitentiary sentence is called for in this case. In R. v. Wright, 83 O.R. (3d) 427 the Court of Appeal (at para. 24) referred jurisprudence describing the sentencing range in home invasion cases as being in the 5 to 10 or 11 years zone, but subject to “a careful examination of the circumstances.” In R. v. Drepaul, 2013 ONSC 8023, Molloy J. referred to the range in home invasion cases as being from a low end of 4-5 years to a high end of 12-13 years.

[35] Of course, any discussion of “ranges” requires appropriate recognition of their true utility. As Wright points out, ranges are “nothing more than guidelines” (at para. 16). Ranges can be a useful tool to give effect to the parity principle, but they should not unwittingly be transformed into a straightjacket nor an excuse to abdicate the trial judge’s primary responsibility under the Criminal Code to determine an appropriate sentence having regard to all of the objectives expressed therein.

[36] I find the case of R. v. Barnes [2006] O.J. No. 5163 to offer the closest parallel to the present situation. In Barnes, Durno J. sentenced a youthful first-time offender involved in a home invasion with many similar features to 41 months custody.

[37] Parity between similar offences in similar circumstances is also an important goal in sentencing. As I have noted, a co-accused who pleaded guilty (and did so when there was considerable uncertainty about the case due to the refusal of the only then-identified victim to return from Vietnam to testify) received a sentence of 27.5 months.

[38] There is no doubt that the proposed sentence of only three years is on the low end – even somewhat below the low end of the range - that might generally be expected to be seen in a case such as this. The parties urged upon me the mitigating circumstances that are present here and that I have discussed above. As well, I concur that the sentence given to Mr. Hussain-Marca must not depart unduly from the sentence given to his co-accused particularly since the latter is the one who held the weapon.

[39] Having carefully considered the authorities cited to me and submissions of the parties, I concluded that the joint submission of 3 years custody less credit of pre-sentence custody of 587 days is a just and fit sentence (in addition to the probation and other terms set forth above) and I so ordered.

Credit

[40] I wish to record a few observations about the (withdrawn) application by the Defence for additional pre-sentence custody credit pursuant to R. v. Duncan, 2016 ONCA 754 due to the harsh conditions prevailing at Toronto South Detention Centre.

[41] Up until May June 22, 2017, Mr. Hussain-Marca had been subjected to 48 days of full lockdown and 110 days of partial lock-down during his time in custody at Toronto South Detention Centre. This amounts to some form of lock-down (full or partial) for 40% of the time he was in custody.

[42] The parties have agreed that the custodial sentence that they have jointly submitted to me as appropriate already takes into account a measure of credit due to those conditions, although no precise amount was quantified or agreed.

[43] Mr. Hussain-Marca has provided me with an affidavit outlining the impact upon him of the conditions at Toronto South Detention Centre. His evidence is depressingly similar to accounts that I (and my fellow judges) have been required to review in other cases recently. I write “depressingly” because the situation is both well-known and highly preventable. In almost every case, the reason for the lock-down is shortage of staff. This is not a question of a snowstorm or train delay causing some staff unexpectedly to have problems in getting to work. The problem is persistent and quite inexcusable.

[44] Full lockdowns are the worst. Inmates are confined to their cell for 24 hours a day. Access to showers, phones or the yard are prohibited. These conditions create added stress in a crowded jail environment. Competition for access to showers, changes of clothes or the telephone creates risk of conflict. Reading material cannot be obtained.

[45] Lockdowns occasionally last for days in a row in which case showers are arranged for a brief period of time every three days.

[46] Partial lock-downs are not a walk in the park either. Instead of being allowed access to the yard or programs, inmates are given only about 6 hours a day of ability to leave their cells (sometimes more; sometimes less). The duration of the restriction periods is unpredictable, itself causing additional competition among detainees to gain access to scarce resources (clean clothes, showers, etc.) for fear a lockdown will see access to these withdrawn without notice.

[47] Visits of family and friends are also often cancelled due to the staffing problems. The result is that visitors find themselves discouraged from attending. Mr. Hussain-Marca reports the Chaplain program suffers from a similar problem. After a while, the Chaplains too become discouraged and simply don’t come at all.

[48] The problem of staff shortages and resulting lock-downs also impacts the administration of justice in ways that it can ill afford. While the TDSC does arrange for the transport of prisoners for court dates during lock-downs, visits from lawyers to prepare for hearings are subject to frequent and unpredictable cancellations. Apart from the wasted expenses, much of which is borne by our Legal Aid system, these cancellations risk causing further delay in the court system if counsel are compelled to seek adjournments of scheduled hearings due to an inability properly to obtain instructions. Sentencing hearings end up getting adjourned and delayed as counsel are required to gather evidence for the very purpose of bringing these detention conditions (and their consequences) to our attention.

[49] More reasons for delay are not welcome in a court system struggling to adapt to the post-Jordan world.

[50] Mr. Heath provided me with a number of authorities that have wrestled with the problem of what credit to allow in recognition of these conditions at Toronto South Detention Centre. These include: R. v. Zhuka, 2016 ONSC 7849, R. v. Campbell, 2017 ONSC 26, R. v. DeSousa, 2016 ONSC 5493, R. v. Dhillon, 2017 ONSC 258 and R. v. Bedward, 2016 ONSC 939. There are others, both reported and unreported.

[51] The speed with which TDSC is now able to produce accurate statistics about the number of full and partial lockdown days to which a given detainee is subject speaks volumes about how often they are requested to do so.

[52] This is a perfectly preventable problem that has been persisting for far longer than it ought. We collectively have a right to expect better from the system. I have not been required to address the consequence of this endemic situation further in this case and of course I will not decide in advance what might be done in another. If shining a light on the problem will assist in addressing it, herewith light.

Disposition

[53] Accordingly, I ordered that Mr. Hussain-Marca be sentenced to a custodial term of 3 years in accordance with the joint submission of the parties. I also ordered that Mr. Hussain-Marca is to be entitled to 587 days of credit for pre-sentencing custody (after crediting 391 actual days at the rate of 1.5:1).

[54] The following additional orders were also made:

a. Probation for a period of 18 months subject to the fairly standard terms and conditions proposed and read by me into the record; b. A firearms and weapons prohibition order under s. 109(2)(a) of the Criminal Code for twenty years; and c. A DNA order under s. 487.051 of the Criminal Code.

[55] I explained to Mr. Hussain-Marca that the sentence being meted out represents the exercise of a considerable degree of leniency in his favour. Leniency is not a well to which one should return twice with the same expectation.

[56] I am confident that he will be able to emerge from this experience wiser and able to avoid a repetition of this sorry episode or anything like it. The tragedy of this case is not confined to the victims who will bear the emotional scars of it for many years. It includes the harm he now understands that he has done to himself and to his family. I wish him every success in preparing for a fresh start when he emerges. I trust that he will try very, very hard not to return.

S.F. Dunphy, J. Released: June 28, 2017 (corrected clerical errors post-release)