CITATION: R. v. Kelly 2017 ONSC 584

COURT FILE NO.: 139/15

DATE: 2017 02 02

ONTARIO

SUPERIOR COURT OF JUSTICE

BETWEEN:

HER MAJESTY THE QUEEN

– and –

TAJAHAN KELLY

D. King, for the Crown

A. Alawi, for the Accused

HEARD: January 16, 2017

REASONS FOR JUDGMENT

Woollcombe J.

A. Introduction

[1] On July 29, 2016, I released my written reasons for judgment in this case and found Mr. Kelly guilty of the three counts charged in the indictment: robbery, being disguised with a face-mask with the intent to commit an indictable offence and operate motor vehicle in a manner that was dangerous to the public. He is to be sentenced.

B. The Facts

a) Circumstances of the Offences

[2] In my reasons for judgment, now reported at 2016 ONSC 3850, I set out the circumstances of the offences. I will not repeat those in detail here.

[3] Suffice it to say that on the evening of March 23, 2014, Mr. Kelly, along with three others, went to the door of an apartment rented by three women. They were masked. They knocked. When the door was answered by Kristine Villeneuve, they forced their way in. They were holding knives.

[4] Inside the apartment, one of the intruders stayed in a bedroom at the end of the hall with Ms. Villeneuve while the others went around the apartment taking electronics. They were inside the apartment for about ten minutes. Given that Mr. Kelly’s thumbprint was identified on a television that was in Ms. Villenueve’s bedroom, and which was moved during the robbery, it seems likely that he was not the individual who stayed with Ms. Villeneuve during the robbery.

[5] On May 27, 2014, the police attempted to arrest Mr. Kelly. They used their vehicles to try to box in his vehicle. He managed to escape from them and drove his vehicle at a high rate of speed through an intersection where a police officer was directing traffic. The issue in relation to this count was whether Mr. Kelly had been the driver, as the fact that the driving was dangerous was conceded.

b) Circumstances of the Offender

[6] Mr. Alawi has provided me with some background in relation to Mr. Kelly and two letters of support were filed.

[7] Mr. Kelly is twenty-one years old and was nineteen at the time of the offences. He is a Canadian citizen. He grew up in a single parent household in relative poverty. He comes before the court with no criminal record. He has completed high school. He has not been working since his arrest as he has been on restrictive bail conditions flowing from unrelated charges.

[8] Mr. Kelly appears to have a loving and supportive family. His mother, aunt and sister all attended at the sentencing hearing. The letters before me from his sister-in-law and cousin demonstrate that his family is very supportive of him and believe strongly that he has strong rehabilitative prospects.

[9] Mr. Kelly is in a committed relationship with his long term girlfriend. She has a child whom they raise together and with whom he has a close bond. They are hopeful of having children together.

[10] Mr. Kelly’s family suggests that he has learned from his mistakes and wishes to take steps to move his life forward in a positive direction.

[11] When provided with an opportunity to address the court, Mr. Kelly asked me to be lenient and to provide him with time to demonstrate that he can be a good person.

c) Victim Impact

[12] The Crown has filed a Victim Impact Statement of Kristine Villeneuve, who was the only person present in the apartment when Mr. Kelly and the other men forced their way into the apartment and robbed her.

[13] In her Victim Impact Statement, Ms. Villeneuve describes how during the robbery, she felt scared and like it was her fault for having opened the door. Immediately after the robbery, she felt uncomfortable and paranoid being around strangers. She also felt scared about being alone. She has had some sleepless nights and nightmares. She is also fearful for her security, as evidenced by her reluctance to answer the door and by her having had to ask her roommates to let her know in advance if they are having male visitors to the apartment.

[14] Ms. Villeneuve had to take time off work for court. She also had to pay the $500 insurance deductible for the items that were stolen.

C. Positions of the Parties

[15] It is the Crown’s position that a sentence of three to four years is appropriate for the three offences. Crown counsel submits that home invasion robbery is a very serious offence and warrants a penitentiary term in order to give effect to the principles of general deterrence and denunciation.

[16] The Crown also seeks ancillary orders including a DNA Order, a weapons prohibition and restitution. Mr. Alawi takes no issue with these orders being made.

[17] Mr. Alawi seeks a reformatory sentence in the range of twelve to eighteen months, to be followed by a period of probation. He emphasizes that Mr. Kelly is a youthful first offender with a supportive family and good prospects for rehabilitation. He says that a penitentiary sentence would be crushing for Mr. Kelly and that the cases he has provided support the imposition of a reformatory term of imprisonment.

[18] Counsel focused their submissions on the totality principle, with both of them acknowledging that the offences from March 23, 2014 were by far more serious. I was invited to impose a sentence of between four months (by the defence) and six months (by the Crown) for the dangerous driving, and invited to make this concurrent with the robbery sentence, notwithstanding the three month time lapse.

D. Legal Principles and Jurisprudence

[19] Section 718 of the Criminal Code sets out that the fundamental purpose of sentencing is to protect society and to contribute, along with crime prevention initiatives, to respect for the law and the maintenance of a just, peaceful and safe society by imposing just sanctions that have one or more of the following objectives:

(a) to denounce unlawful conduct;

(b) to deter the offender and other persons from committing offences;

(c) to separate offenders from society, where necessary;

(d) to assist in rehabilitating offenders;

(e) to provide reparations for harm done to victims or to the community; and

(f) to promote a sense of responsibility in offenders, and acknowledgment of the harm done to victims and to the community.

[20] At the same time, in accordance with s. 718.1, a sentence must be proportionate to the gravity of the offence and the degree of responsibility of the offender.

[21] Section 718.2 states that a court that imposes a sentence shall take into consideration the following principles:

(a) a sentence should be increased or reduced to account for any relevant aggravating or mitigating circumstances relating to the offence or the offender…

(b) a sentence should be similar to sentences imposed on similar offenders for similar offences committed in similar circumstances;

(c) where consecutive sentences are imposed, the combined sentence should not be unduly long or harsh.

[22] Section 348.1 mandates that home invasion is an aggravating circumstance:

If a person is convicted of an offence under section 98 or 98.1, subsection 279(2) or section 343, 346 or 348 in relation to a dwelling-house, the court imposing the sentence on the person shall consider as an aggravating circumstance the fact that the dwelling-house was occupied at the time of the commission of the offence and that the person, in committing the offence,

(a) knew that or was reckless as to whether the dwelling-house was occupied; and

(b) used violence or threats of violence to a person or property.

[23] The jurisprudence makes clear that when imposing sentence on those convicted of home invasion robbery, the objectives of protection of the public, general deterrence and denunciation take priority: R. v. Hill, 2013 ONCA 572 at paragraph 4. Though rehabilitation should be considered, "a stiff penitentiary sentence is generally called for": R. v. Wright 2011 ONSC 4685, [2011] O.J. No. 4870 (C.A.) at paragraph 24.

[24] The Court of Appeal has emphasized that the task of arriving at an appropriate range of sentence for home invasion robbery is challenging because of the many different ways in which such a crime may be committed. A nuanced approach is thus warranted. Consideration is to be given to the circumstances of the particular case, the nature and severity of the criminal acts perpetrated in the course of the home invasion and the situation of the individual offender.

[25] The parties have each provided me with casebooks to assist me in reaching a fit sentence. While I have reviewed all of these decisions, I find the following to be of particular assistance.

[26] In R. v. Drepaul, 2013 ONSC 8023, Molloy J. imposed a four and a half year sentence on a youthful first offender convicted of a number of offences including robbery, wear a disguise with intent, forcible confinement and possessing and trafficking in stolen property. The accused and two others entered a private home wearing face masks. One of the intruders attacked the teenaged daughter with a knife to her throat, punched her in the head and threatened to kill her. The accused had family and work support and rehabilitation was a realistic prospect. The sentencing judge found that nature of the offence and its impact on the victim were aggravating.

[27] In R. v. Loots-Scott, [2015] O.J. No. 6160, Donohue J. imposed a sentence of four years in the penitentiary. The accused was one of three males who broke into a residence knowing that the home was occupied. They went to the victim’s bedroom and demanded to know where the valuables were. The trial judge found the accused was threatening and was masked with a knife. Aggravating factors included the accused’s lengthy youth record, the fact that he was under supervision at the time of the offence, the fact that he was masked with a knife and the fact that there was unnecessary violence to the homeowner. By way of mitigation, the accused was 18 years old at the time of the offence. He appeared to have turned his life around from his troubles with the law by the time of sentence. He had a supportive family and was a caregiver to his younger siblings.

[28] In R. v. McNulty 2015 ONCA 776, the Court of Appeal considered the appellant’s appeal from the imposition of a two years less a day sentence. The appellant was convicted in the Ontario Court of Justice of assault and break, enter and commit assault. She surreptitiously obtained keys to the premises and was then involved with two others in a home invasion. She used or threatened violence on the victim. There was a favourable pre-sentence report and she had shown “admirable rehabilitative efforts”. The Court of Appeal concluded that a conditional sentence was not fit and noted at paragraph 10 that “indeed, the trial judge might have imposed a penitentiary sentence and would not have erred in principle had he done so.”

E. Aggravating and Mitigating Factors

[29] I find that the following circumstances are aggravating:

• There was some degree of planning on the part of the group that committed the robbery. They asked Ms. Villeneuve where the drugs and money were, clearly believing, albeit incorrectly, that such items would be found in this particular apartment;

• There were four male intruders who, together, pushed their way into the apartment of a lone female occupant;

• The intruders were masked;

• The intruders carried knives. While the defence submits that I cannot be sure that Mr. Kelly had a knife, the evidence of Ms. Villeneuve was that they had knives;

• This was a violation of the sanctity of a private residence.

[30] At the same time, there are important mitigating circumstances:

• Mr. Kelly is a young man;

• Mr. Kelly has no criminal record;

• Mr. Kelly has a supportive family who is committed to assisting in his rehabilitation;

• While frightening for the complainant, the offence was of a relatively brief duration;

• There was no gratuitous violence or threats made to Ms. Villeneuve;

F. The Sentence to be Imposed

[31] In my view, notwithstanding the mitigating circumstances, a penitentiary sentence is required for the March 23, 2014 offences. I view this case as less serious than those in both Drepaul and Loots-Scott and think a lower sentence is warranted.

[32] However, this was a brazen robbery of Ms. Villeneuve’s home committed by overpowering her to gain access and then terrifying her through the use of masks and knives in order to steal the electronics. Not surprisingly, this has had a significant effect on Ms. Villeneuve. I do not think that the principles of sentencing can be properly achieved with anything short of a penitentiary sentence. I find that a sentence of three years, given the circumstances, is appropriate.

[33] Mr. Kelly will be sentenced to three years for the robbery in count one and to one year, concurrent for having his face masked with intent to commit an indictable offence in count two.

[34] In my view, the dangerous driving conviction warrants a sentence of five months. It was conceded at trial that the driving described by the officers at trial was dangerous. The dangerous driving included backing into Officer Tidball and Officer Neglia’s vehicle, driving forward and colliding with Detective Constable Talsma’s vehicle, driving over the curb twice to escape, proceeding along Aquitaine Avenue at a very high rate of speed, failing to stop when directed to do so by Constable Wang, crossing into the path of oncoming traffic and then continuing at a high rate of speed through a residential area. The issue at trial was whether the Crown had proven this was Mr. Kelly. I was satisfied that it was.

[35] This was a serious offence that put many peoples’ lives in danger. It was a cowardly response by Mr. Kelly to the fact that the police were trying to arrest him. While it would certainly be open to the court to impose a consecutive sentence for the dangerous driving, given the totality principle, which counsel invite me to apply, I order that the five month sentence be concurrent. Had I made it consecutive, I would have been inclined to decrease the sentence for counts one and two in order to give effect to the principle of totality as in my opinion, a total sentence of three years for all three offences is appropriate.

[36] Mr. Kelly is to be credited three days for the two days of pre-sentence custody he has served.

[37] In addition, I impose the following ancillary orders:

a. a firearms and weapons prohibition under s. 109(2)(a) of the Criminal Code for ten years and under s. 109(2)(b) of the Criminal Code for life;

b. a primary DNA order under s. 487.051 of the Criminal Code;

c. a restitution order for $500 under s. 738(1)(a) to Ms. Villeneuve.

Woollcombe J.

Released: February 2, 2017

CITATION: R. v. Kelly 2017 ONSC 584

COURT FILE NO.: 139/15

DATE: 2017 02 02

ONTARIO

SUPERIOR COURT OF JUSTICE

HER MAJESTY THE QUEEN

– and –

TAJAHAN KELLY

REASONS FOR JUDGMENT

Woollcombe J.

Released: February 2, 2017