Overview

[1] In a five-count indictment, Mr. Mandella John Aru Asouth was charged with common assault, assault with a weapon, possession of stolen property, breaking and entering, and possession of break-in instruments.

[2] Mr. Asouth pleaded not guilty to all charges against him.

[3] On September 22, 2017, following a three-day trial, during which I heard evidence from six witnesses, including all of the complainants and Mr. Asouth, I found Mr. Asouth guilty of all five counts in the indictment, as charged.[^1]

[4] In particular, I found Mr. Asouth guilty of:

a. committing common assault on Mr. Christian Williams on October 10, 2015, contrary to s. 266 of the Criminal Code,[^2] as charged in count no. 1 of the indictment;

b. committing an assault on Mr. Christian Williams on October 10, 2015, with a weapon, namely, a knife, contrary to s. 267(a) of the Code, as charged in count no. 2;

c. possession of property of a value not exceeding $5,000, knowing that all or part of the said property had been obtained by crime, contrary to s. 354(1) of the Code, as charged in count no. 3;

d. breaking and entering the residential home situated at 212 Geraldine Crescent, Windsor, Ontario, with intent to commit an indictable offence therein, contrary to s. 348(1)(a) of the Code, as charged in count no. 4; and

e. possessing certain instruments, namely, gloves, suitable for the purpose of breaking into a motor vehicle, contrary to s. 351(1) of the Code, as charged in count no. 5.

[5] Mr. Asouth is now before me for sentencing, the sentencing hearing having been held on January 2, 2018.

Factual Background

Circumstances of the Offence

[6] There were two incidents that gave rise to the charges in the indictment. Both incidents took place in or about the early morning hours of Saturday, October 10, 2015, the first in the 200 block of Geraldine Crescent in Windsor, Ontario, and the second in the 2700 block of Radisson Avenue in Windsor. The Radisson address is some 1,600 metres away from the Geraldine address.

[7] The first incident took place at 212 Geraldine Crescent, at the residential home owned and occupied by Mr. Ping Yu (or “Peter”) Xue and his wife. This first incident involved a break and enter that happened at that home some time between 9:00 or 9:30 p.m. on the Friday night before, and about 5:00 a.m. on Saturday morning, when Mr. Xue discovered that doors to the home were open.

[8] Mr. Xue resides in that home with his wife and their six-and-a-half-year-old son, as well as his cousin Mr. Yu Chen (or “Nick”) Lin, who was living there at the time while he was studying at university to become a dentist. Nick stayed in a bedroom in the basement of Mr. Xue’s home.

[9] Sometime around 5:00 a.m. Saturday morning, Mr. Xue’s wife woke him up, shaking him awake. Mr. Xue believed he heard a noise downstairs. Mr. Xue got out of bed and went downstairs to investigate.

[10] Mr. Xue thought that perhaps his cousin Nick was responsible for the open doors, and so he went downstairs to the basement to see if Nick was home. He did not find Nick in the basement, but on his quick look, he observed the room was fairly messy.

[11] Mr. Xue then texted Nick to ask him where he was. When he did not respond, Mr. Xue closed and locked the doors and then returned to bed.

[12] Mr. Xue woke up later that morning around 9:00 or 9:15 a.m. He went outside and as he walked by his wife’s car, he noticed that there were various papers scattered on the passenger seat inside the vehicle.

[13] At that point, Mr. Xue believed his house had been broken into, and so he went in the house and telephoned Nick. As Mr. Xue was talking to Nick on the phone, Mr. Xue walked down to the basement to look for certain belongings that Nick directed him to. Nick told Mr. Xue that he kept some money in an envelope in his dresser drawer in his bedroom, and he had some very important documents on a table in the larger, main room in the basement. Mr. Xue found the documents, but he did not find the money.

[14] Mr. Xue then went to look around the house. He discovered that a 13-inch Dell laptop computer of his was missing.

[15] On the evidence before the court, I concluded that the break and enter at the Xue residence at 212 Geraldine Crescent took place at approximately 5:00 a.m. that Saturday morning.

[16] I also found that three hours later the backpack that was recovered from Mr. Asouth upon his arrest at about 8:00 a.m. at 2764 Radisson Avenue, contained property that was obtained by commission of a crime, namely:

a. a large amount of U.S. and Canadian cash, as well as Jamaican, Euros, and Hong Kong currency;

b. in particular, there was $520 Jamaican dollars, €2 Euros, $2 Hong Kong dollars, $181.90 in Canadian currency, and $289.30 in U.S. currency;

c. three empty T.D. Bank cash envelopes;

d. three passport-size photographs of Mr. Nick Lin;

e. one LG Nexus cellphone;

f. a watch;

g. a micro SD card; and

h. a USB cable.

[17] The items of property that belonged to Nick included the passport photographs of Nick, a sum of Canadian and U.S. currency, the T.D. Bank envelope that the money was stored in, and a “Nexus 4” Android smartphone.

[18] In particular, I accepted the evidence of Nick that he had a mixture of about $400 to $500 in mixed Canadian and U.S. currency, stored in a T.D. Bank envelope, which he kept in his dresser drawer in his bedroom in the basement. The evidence of the police witnesses was that the backpack recovered from Mr. Asouth upon his arrest contained, among other things, $181.90 in Canadian currency, and $289.30 in U.S. currency. I found that those amounts were consistent with Nick’s evidence.

[19] The second incident took place at 2764 Radisson Avenue in Windsor, at the residential home owned and occupied by Chris and Michelle Williams. This second incident happened at about 8:00 a.m. that same Saturday morning. Mr. Williams found Mr. Asouth sitting in his pickup truck, parked in his driveway. A physical altercation ensued between Mr. Williams and Mr. Asouth. Mr. Asouth was restrained by Mr. Williams with the help of his wife and a neighbour. The police were called, and Mr. Asouth was arrested by police at that site.

[20] Michelle and Chris Williams resided at their home at 2764 Radisson Avenue, with their daughter (who was then 17 years of age) and their son (who was then 15 years of age).

[21] Mr. Williams got up about 7:30 or 7:45 a.m. that Saturday morning. Soon after they got up, Mrs. Williams noticed the family dog sticking its nose out through the blinds and growling at something. Mrs. Williams opened the blinds and saw that the driver’s side door was open on her husband’s Ford F150 pickup truck. The pickup truck was parked in the driveway of the home at the time, closest to the garage door, immediately in front of Mrs. William’s Ford Escape vehicle.

[22] Mr. Williams looked out and saw the truck door open, but could not see anyone; so he dressed quickly and went outside. He walked between the two vehicles and saw the shoulder of a person sitting in the car behind the steering wheel. Mr. Williams was surprised and yelled at the person. The male person, who was Mr. Asouth, got out of the truck cab, turned around 180 degrees to face Mr. Williams, and stood with his back against the interior of the open driver’s-side door. By that point, Mr. Williams had approached the intruder to within an arm’s length.

[23] Mr. Williams observed that Mr. Asouth had a backpack and was wearing black gloves. The first thing Mr. Asouth did was take “two swings” at Mr. Williams, which he described as two closed-fist punches, the first with his right hand and the second with his left. The first punch grazed Mr. Williams’ left temple. Mr. Williams ducked the second swing thrown by the intruder.

[24] Mr. Williams was startled by the two swings. Facing the intruder, Mr. Williams tried to grab him; he said he “grabbed two handfuls of sweater and backpack.” Mr. Williams tried to wrestle the man to the ground, using his greater weight and height to try to get on top of him.

[25] Ultimately, both men went down to the ground, on the strip of grass to the left of the driveway. Mr. Asouth was face down to the ground, trying to get on his hands and haunches, trying to escape, and Mr. Williams had his chest to Mr. Asouth’s back.

[26] Mr. Williams had some difficulty subduing the man. He said the intruder was very wiry, with his arms thrashing about, and his legs kicking. Mr. Williams said he was trying to control the man’s torso and at least keep the man underneath him.

[27] Mr. Williams testified that at some point while they were wrestling on the ground, he called out to his wife. Mrs. Williams came out of the house and was standing about five or six feet from the struggle. She yelled out, “he’s got a knife!” Mr. Williams said he then tried to put his shoulder weight on the man, but his arms and feet were flailing everywhere. He testified that when his wife alerted him to the knife, he tried to get a view of the man’s arms and hands. He put his left arm around the man’s left arm and brought it up to the man’s chest in what Mr. Williams described as a “chicken wing” manoeuvre. Mr. Williams then grabbed the man’s outstretched right hand with his own right hand. Mr. Williams observed that the man was holding a knife in his right hand and was trying to flip the blade but was having difficulty doing so, and Mr. Williams had “chicken winged” the man’s left hand such that he could not use it.

[28] Mr. Williams testified that at some point while they were wrestling, while he had the man chicken-winged with his hand around his head, the man bit Mr. Williams on his left hand. Mr. Williams said the bite did not break the skin.

[29] Mrs. Williams said that her husband then told her to “go get Mike.” Mike was their neighbour who lived across the street.

[30] Mrs. Williams ran across the street and banged on Mike’s door; she was hysterical and screaming loudly. Within seconds Mike came running out. Mrs. Williams yelled at Mike, “he’s got a knife, he’s got a knife.” Mike ran across the street and came to her husband’s aid.

[31] When Mike came running over, Mr. Williams told Mike that the man had a knife in his hand. Mike went to the man’s hand and got the knife away. Once Mike disarmed the man of the knife, Mr. Williams felt he could back off a bit, but he kept his knee on the man, and Mike held the man’s legs. At that point, Mr. Williams could hear the police sirens approaching. He remembered that the man said, “let me go, let me go,” and Mr. Williams told him that he was not letting him go and the police were coming.

[32] The police arrived on scene, and a police constable said to Mr. Asouth, who was still struggling at that point, “Windsor Police. Settle down,” and Mr. Asouth did settle down at that point.

[33] Following the arrest of Mr. Asouth, Mr. Williams surveyed his truck. He noticed some damage around the driver’s side door: the door had surpassed its hinges and had folded the sheet-metal in a little. Mr. Williams observed the interior of the cab of the pickup and saw that his glove box had been rifled through, the centre console was flipped up, and there was stuff strewn all over the back seat.

[34] In convicting Mr. Asouth of assault, I found that when Mr. Williams approached Mr. Asouth, he threw two punches at Mr. Williams, and the first swing grazed him on his left temple. A struggle ensued, in the course of which Mr. Williams received an abrasion to the “pointer finger” of Mr. Williams’ right hand.

[35] In convicting Mr. Asouth of assault with a weapon, I found that, on his own evidence, Mr. Asouth was holding a knife during the entire struggle with Mr. Williams. He had it in his hand. I noted that it is certainly intimidating to encounter a stranger who is holding onto a knife and engaging in a struggle with him.

[36] Further, I accepted the evidence of both Mr. and Mrs. Williams that as Mr. Williams was struggling with Mr. Asouth on the ground, Mr. Asouth was fumbling with the knife in a manner that was reasonably interpreted as trying to open the folded blade. Mrs. Williams was obviously concerned for her husband: she yelled to him, “he’s got a knife” and again when she ran across the street to their neighbour, pounding on the door hysterically, she told Mike that the man had a knife. It was clearly a frightening and intimidating situation.

[37] In convicting Mr. Asouth of possession of break-in instruments, I found that it was common ground that Mr. Asouth was in possession of a pair of gloves, as well as two folding knives. Mr. Asouth himself admitted that at the time of his altercation with Mr. Williams following his breaking into the pickup truck, he was actually wearing at least one of the gloves.

[38] I also found that as a matter of common sense and experience, gloves and a knife are instruments that are suitable for the purpose of breaking into a car.

[39] However, as to whether Mr. Asouth intended to use the instruments for the purpose of breaking into the motor vehicle, I found that, on Mr. Asouth’s own evidence, he was wearing at least one glove when he was in the pickup. I found that there was no other reasonable explanation for Mr. Asouth to be wearing the gloves except to ensure that he did not leave fingerprints on the surfaces of the motor vehicles that he decided to break into.

Circumstances of the Offender

[40] A pre-sentence report was prepared on November 17, 2017, and marked as Exhibit No. 1 on the sentencing hearing.

[41] Mr. Asouth is currently 21 years old. He had turned 19 years of age a little more than three months before the date of the offence in October 2015.

[42] Mr. Asouth was born in Sudan, one of seven children born to his parents. The family migrated to Canada in 1998, when Mr. Asouth was two years old. He grew up in Windsor, Ontario. He described his upbringing in favourable terms and advised that there were no domestic violence or substance abuse issues in the family home. His parents separated when he was ten years old. Mr. Asouth advised that “his parents shared an amicable relationship throughout his upbringing.” He could provide no insight into the reason for his parents’ separation. The family had never been involved with any child welfare organizations.

[43] Mr. Asouth is not married, was not involved in any relationship at the time of the pre-sentence report, and has no dependents. He reportedly is an “occasional drinker” only and apparently advised the probation officer that he “has never experimented with drugs in the past.”[^3]

[44] Mr. Asouth is currently residing with his mother in Windsor. He has a supportive family. He was unemployed at the time of the pre-sentence report and sentencing hearing. His employment history consists of short-term employment at manufacturing industries.

[45] Mr. Asouth has completed his grade 12 education. He reports that he plans to pursue and complete post-secondary education regardless of the outcome of the instant proceeding. That said, there is no evidence that Mr. Asouth has taken any real steps to pursue post-secondary studies after he graduated from high school.

[46] The pre-sentence report indicates that although Mr. Asouth said that “he accepts full responsibility for his actions, he appears to lack insight into his behaviour by indicating that the victims initiated the action which led to the offence. [Mr. Asouth] does not appear to appreciate the impact on victims. … [He] did not appear to understand the seriousness of his actions.”[^4]

[47] The pre-sentence report indicates that Mr. Asouth has no criminal record.

[48] In his allocution statement to the court, Mr. Asouth apologized to the victims and the court. Mr. Asouth said he knows what he did was wrong, and he takes full responsibility for his actions. He explained that at the time of the offence, he “was young, ignorant, and I was running with the wrong crowd.” Mr. Asouth said that all this happened in 2015, and he just wants to move on with his life and “put this whole thing aside so I can start anew and go back to school.”

Impact on the Victims

[49] Subsection 722(1) of the Code directs a court to consider any statement of a victim prepared in accordance with that section.

[50] I am advised that the Crown did invite Mr. Ping Yu (Peter) Xue and Mr. Yu Chen (Nick) Lin to provide a victim impact statement if they wished. However, apparently no response was received from either of them.

[51] However, victim impact statements were provided by Mr. Christian Williams and Mrs. Michelle Williams, which were marked as Exhibit Nos. 2 and 3, respectively, on the sentencing hearing.

[52] I think it important and necessary to repeat some of the contents of those victim impact statements here in order that Mr. Asouth may hear and attempt to appreciate the lasting impact that his crimes have caused. I think this is particularly important given the observations in the pre-sentence report that, Mr. Asouth “does not appear to appreciate the impact on victims” or “understand the seriousness of his actions.”

[53] The statement provided by Mr. Williams speaks to the feelings of shock, fear, danger, aggression, and physical assault that he experienced early that Saturday morning when he was confronted with Mr. Asouth in his pickup truck. Apart from the physical damage sustained to his truck, Mr. Williams explained that while the physical injuries he sustained that morning have now healed, the emotional impact of the incident remains with him.

[54] Mr. Williams continues to experience lasting anxiety. More than two years after the assault, Mr. Williams continues to ask himself, “[w]ill this happen again, how can I prevent it, what did I do, … I mostly feel hatred toward him for this uneasiness I feel. I am an up-beat individual that has now come to terms with the fact that my life will not go back to the Canadian way of giving more of you to others and [I] have to move to a more distrustful side.”

[55] Further, as Mr. Williams explained, “I find it hard to trust anyone other than my immediate family. I find myself relying a lot on reassurance from my family that I did the right things, as I also struggle with remorse for the perpetrator of this crime.”

[56] Mrs. Williams also provided a victim impact statement. It is clear from a review of her statement that Mrs. Williams is still plagued by the ever-present memory of the extreme panic and fear for her husband’s safety that struck her that Saturday morning. As Mrs. Williams described it: “for me, the part that will always stick with me is the sound of Chris calling out my name. After more than 25 years together, you know the tones of voice that each other use, and this was one I had never heard before. I knew that something was wrong, and I ran to him immediately. … When I came around the truck that day and saw Mandella attempting to open his knife, I felt panic – immediate panic.”

[57] Mrs. Williams went on to describe the impact on her family members. She observed that, “both of us, as well as my then 15 year old son, were changed by the offender in our driveway. Our son felt some guilt that he was unable to help beyond just making the 911 call. Chris is a good guy, a gentle guy, [and] it is not in his nature to grab and hold someone against their will, especially someone who is barely out of their teens, but he was protecting his family that morning, and he knows that holding him was the right thing to do. … For me, his victim, the biggest impact has been my losing faith in people.”

[58] I have reviewed and carefully considered these victim impact statements in determining an appropriate sentence for Mr. Asouth.

Legal Parameters

[59] At the time of the offence, the provisions of s. 266 of the Code relevant to count no. 1 in the indictment provide that everyone who commits an assault is guilty of an indictable offence and is liable to imprisonment for a term not exceeding five years.

[60] At the time of the offence, the provisions of s. 267(a) of the Code relevant to count no. 2 provide that everyone who commits an assault with a weapon is guilty of an indictable offence and is liable to imprisonment for a term not exceeding ten years.

[61] At the time of the offence, the provisions of ss. 354(1) and 355 of the Code relevant to count no. 3 provide that everyone who possesses stolen property not exceeding $5,000 is guilty of an indictable offence and is liable to imprisonment for a term not exceeding two years.

[62] At the time of the offence, the provisions of ss. 348(1)(a) and (d) of the Code relevant to count no. 4 provide that everyone who breaks and enters into a dwelling house with intent to commit an indictable offence is guilty of an indictable offence and is liable to imprisonment for life.

[63] At the time of the offence, the provisions of s. 351(1)(a) of the Code relevant to count no. 5 provide that everyone who is in possession of break-in instruments is guilty of an indictable offence and is liable to imprisonment for a term not exceeding ten years.

Positions of Crown and Defence

[64] The submissions of both counsel for the Crown and for the defence on the appropriate range of sentence appropriately focused on what was mutually accepted as the most serious charge before the court, that is, the charge of breaking and entering into a dwelling home in count no. 4 of the indictment. It carries a maximum penalty of imprisonment for life.

[65] I have carefully considered the submissions of counsel for both parties. Mr. Lall submitted on behalf of the Crown that an appropriate sentence in the circumstances of the instant case would be imprisonment for a term somewhere between 10 to 12 months. Mr. Telford-Keogh for the defence submitted that imprisonment within the range of 4 to 6 months would be appropriate. Quite properly, Mr. Telford-Keogh conceded that breaking and entering a dwelling house, in the middle of the night, and when the occupants are resident in the home, is a serious offence.

[66] As well, to his credit, Mr. Telford-Keogh candidly acknowledged that in the circumstances of the instant case, and in the absence of the mitigating effect attendant upon a guilty plea, it is not a reasonable position to assert that a custodial sentence in the instant case is not a realistic or inevitable outcome.

[67] Moreover, both counsel are in agreement that, in addition to the custodial element of the sentence, there should also be a period of probation. The Crown submits that a period of 12 to 18 months’ probation would be appropriate, and the Crown suggested certain terms of that probation, which I address below.

[68] I have also considered the cases relied upon by both counsel and their submissions on each other’s authorities.

[69] Sentencing is a highly discretionary and “inherently individualized process.”[^5] Accordingly, while cases decided by other courts are useful for certain purposes, the decisions turn on their own unique circumstances. My task is to impose a sentence that is appropriate for Mr. Asouth “based on the particular facts of the offence and of the offender within the applicable principles of law.”[^6]

Analysis

Principles of Sentencing

[70] The fundamental principle of proportionality in sentencing is enshrined in s. 718.1 of the Code, which provides as follows:

A sentence must be proportionate to the gravity of the offence and the degree of responsibility of the offender.

[71] The fundamental purpose of sentencing is set out expressly in s. 718 of the Code, which provides as follows:

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 and the harm done to victims or to the community that is caused by unlawful conduct;

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

(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 or to the community.

[72] Section 718.2 of the Code sets out other sentencing principles and considerations, including the following:

A court that imposes a sentence shall also 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;

(d) an offender should not be deprived of liberty, if less restrictive sanctions may be appropriate in the circumstances; and

(e) all available sanctions, other than imprisonment, that are reasonable in the circumstances and consistent with the harm done to victims or to the community should be considered for all offenders, with particular attention to the circumstances of Aboriginal offenders.

Mitigating Factors

[73] I consider the following mitigating factors:

a. youthful first offender: Mr. Asouth was just 19 years of age at the time of the offences. Further, he has no criminal record. These considerations are deserving of significant weight; and

b. considerations of remorse: While Mr. Asouth did apologize to the victims of his crimes (and to the court) in his allocution, his statement did not truly express remorse for the consequences of his actions as they have affected the victims. Indeed, there was no demonstrated insight into or even acknowledgement of the impact of his actions on the victims of his crime. In my view, his allocution reinforced the observation made in the pre-sentence report that Mr. Asouth “does not appear to appreciate the impact on victims.” In the circumstances, it does not reflect a true expression of remorse for his conduct and the impact it has had on the victim. It is therefore entitled to no weight as a mitigating factor. That said, while an offender’s expression of remorse is a mitigating factor, the failure to express remorse is not an aggravating factor.[^7] The failure of Mr. Asouth to express any real remorse is simply a neutral factor.

Aggravating Factors

[74] The Crown’s submissions did not identify any specific aggravating factor in the circumstances of the instant case.

[75] That said, during oral submissions at the sentencing hearing, Mr. Lall on behalf of the Crown referenced some concerning similar conduct that post-dates the offence now before the court for sentencing. This other conduct, which occurred on April 9, 2017, ultimately resulted in a guilty plea before the Ontario Court of Justice on April 21, 2017, for breach of recognizance for failure to comply with the condition that the accused not consume alcohol.

[76] At my invitation, Mr. Lall provided the court with a transcript of the proceedings before the Ontario Court of Justice on April 21, 2017, which I have reviewed.

[77] However, Mr. Lall has confirmed that the Crown does not rely on this subsequent conduct or the conviction of April 21, 2017, as an aggravating factor per se. The Crown remains ad item with the defence that, for present purposes, Mr. Asouth is before this court for sentencing as a youthful first offender. The Crown submits only that this other episode provides “valuable context.”

[78] While I have considered the Crown’s submissions, the circumstances surrounding the post-offence conduct on April 9, 2017, have not materially influenced my analysis of the appropriate sentence for Mr. Asouth.

Appropriate Sentence

[79] Mr. Asouth has no criminal record. That is a primary consideration. The courts have repeatedly held that, generally speaking, the primary objectives in sentencing a first offender are individual deterrence and rehabilitation.[^8] Our Court of Appeal has made it clear that in the case of a first offender, the sentence “should constitute the minimum necessary intervention that is adequate in the particular circumstances,” and the sentencing court “should explore all other dispositions before imposing a custodial sentence” and impose a custodial sentence only where the circumstances are such, or the offence is of such gravity, that no other sentence is appropriate.[^9]

[80] Moreover, Mr. Asouth is a young man. He was just 19 years old at the time of the offence and is 21 years old at present. The courts have said that in the case of a youthful first offender, the general rule is that the analysis should focus on the particular offender and the considerations of individual deterrence, where necessary, and rehabilitation.[^10]

[81] Both Mr. Lall for the Crown and Mr. Telford-Keogh for the defence acknowledge that the most serious offence before the court for sentencing is Mr. Asouth’s conviction for breaking and entering. Mr. Asouth broke into and entered a residential dwelling in the early morning hours when the home was occupied by the resident family, including a young child. I agree with Mr. Telford-Keogh that, thankfully, this is not the type of “home invasion” case that involves a physical altercation with the occupants or the use of violence or threats of violence, as might constitute an aggravating factor under s. 348.1 of the Code.

[82] However, it is instructive to recall the rationale underlying the seriousness with which the Code treats break and enter offences and the societal interests that the law seeks to protect. These concerns were succinctly explained by Trotter J., as he then was, in R. v. Snow, in the following terms:

In our society, the home is a place of great sanctity: … Due to the robust expectation of privacy people have in their own homes, the law provides formidable protection against state intrusion. Because of the sense of security that people enjoy while in their homes, the law punishes intrusions by individuals into homes more severely than other types of break-ins. When a home is broken into, there is always the risk of physical harm to the occupants of the home … For these reasons, break-ins of dwelling houses are punishable by a maximum of life imprisonment: see Criminal Code, s. 348(1)(d).[^11]

[83] For these reasons, I agree with Mr. Lall’s submission that the defence submission of four to six months incarceration is significantly below an appropriate range for the custodial portion of the sentence, even for a youthful first offender.

[84] Mr. Telford-Keogh relied upon the decision of Horkins J. of the Ontario Court of Justice in R. v. Karp-Johnson, where a sentence of eight months incarceration followed by probation was imposed for breaking and entering into a dwelling home, following a sentencing circle convened at the request of the Aboriginal offender in that case.[^12]

[85] Respectfully, in my view, that decision more closely aligns with and supports the Crown’s position than it does that of the defence. I appreciate that some circumstances of the offence were more egregious in Karp-Johnson than the instant case, in that, the offender in Karp-Johnson had deliberately “scoped out” that residential home that was broken into, which was owned by an elderly victim, and the home was then gratuitously ransacked. On the other hand, I would note that the elderly victim there was not present at the time of the break and enter, as were the family member occupants here.

[86] More importantly, the court noted that early on in the course of the case management intake process, counsel for the offender “made it abundantly clear that Mr. Karp-Johnson wanted to resolve this matter by way of a guilty plea.”[^13] The significant mitigating factor attendant upon a guilty plea is obviously not present in the instant case.

[87] Further, the Aboriginal offender in Karp-Johnson attracted consideration of Gladue principles.[^14] While it was noted that Mr. Asouth’s parents separated when he was ten years old, Mr. Telford-Keogh quite properly conceded that the instant case does not engage Gladue principles. I would emphasize that point; given the generally positive home environment and upbringing that Mr. Asouth enjoyed, there can be no useful, valid, or appropriate comparison to Gladue considerations in the instant case.

[88] My point is that even with the mitigating factor of a guilty plea and considerations of Gladue principles at play, the offender in Karp-Johnson nonetheless received a sentence, following a sentencing circle, of eight months. Those factors are clearly absent in the instant case. On the other hand, Mr. Karp-Johnson had a criminal record, and it certainly cannot be said that he was a youthful first offender.

[89] As I have said, in my view, the Karp-Johnson decision better supports the Crown’s position that the appropriate sentence here is one of imprisonment for a term somewhere between 10 to 12 months. However, again, it cannot be forgotten that because Mr. Asouth presents as a youthful first offender here, primacy must be given to the considerations of individual deterrence, where necessary, and rehabilitation.

[90] On the latter point, I agree with the submissions of Mr. Lall that given the lack of insight into the consequences of his misconduct, which comes out of the pre-sentence report, and which is concerning, emphasis should be placed on the principle of individual deterrence. In my view, that calls for a longer period of incarceration.

[91] That said, I would not go so far as the Crown submits in terms of incarceration for this youthful first offender, but I do think it appropriate to impose a longer period of probation following incarceration for rehabilitation purposes.

[92] As Horkins J. observed in Karp-Johnson,[^15] I have concluded here that the purpose and principles of sentencing require that a clear message be conveyed to Mr. Asouth. The message is that a decision to engage in criminal behaviour carries consequences with it, and, “quite bluntly and unapologetically,” one of those consequences is punishment, which, in these circumstances, requires imprisonment. That said, it is always hoped that, along with punishment, a just sentence in these circumstances will also facilitate rehabilitation and a heightened sense of personal responsibility.

[93] Therefore, having regard for all of the relevant circumstances, I have concluded that a just and fit sentence for Mr. Asouth requires a term of imprisonment of eight months, followed by a period of probation for 18 months.

[94] Counsel for both the Crown and the defence made no submissions as to the appropriate range of sentence in respect of the convictions other than the break and enter offence, which, in fairness, everyone recognized was the most serious offence before the court.

[95] That said, I appreciate counsel’s submissions on whether separate sentences should or should not be imposed on related offences because of Kienapple principles.[^16]

[96] In my view, Kienapple principles do not apply to the circumstances of the instant case.

[97] I can appreciate the first-blush congruence between the conviction on count no. 1 for assault contrary to s. 266 of the Code and the conviction on count no. 2 for assault with a weapon contrary to s. 267(a). However, while they both arose out of the same continuum of events that Saturday morning, in my view, the convictions were for distinct, separate offences.

[98] The conviction for assault was imposed because of the “two swings” that Mr. Asouth took at Mr. Williams, which the latter described as two closed-fist punches, the first with Mr. Asouth’s right hand, which grazed Mr. Williams’ left temple.

[99] The conviction for assault with a weapon arose out of the subsequent struggle that ensued between Mr. Williams and Mr. Asouth, following the initial “two swings,” during which Mr. Asouth had a knife in his hand, which in the subsequent struggle, he was trying to unfold. The evidence was, at that point, both Mr. Williams and Mr. Asouth were on the ground, with Mr. Williams on top of Mr. Asouth, trying to subdue him. It was only then, after Mrs. Williams screamed “he’s got a knife,” that Mr. Williams became aware that Mr. Asouth was brandishing a knife, and the assault with a weapon occurred.

[100] In my view, these represent two different offences, attracting distinct sentencing considerations.

[101] I also reject the suggestion that the conviction on count no. 5 for possession of break-in instruments – i.e., the gloves – should not receive separate sentencing treatment apart from that of the conviction on count no. 4 for break and entering a dwelling home. The conviction for break and enter was imposed in respect of Mr. Asouth’s entry into the residential home of Mr. Peter Xue at 212 Geraldine Crescent, whereas the conviction on count no. 5 for possession of break-in instruments was imposed as a result of Mr. Asouth wearing gloves for the purposes of breaking into Mr. Williams’ pickup truck parked in his driveway at 2764 Radisson Avenue. Again, these are two different transactions, and Kienapple has no application.

[102] Both counsel agreed that probation was appropriate in the instant circumstances. I note that there was essentially no objection taken to either the terms of probation or ancillary orders proposed by the Crown.

[103] That said, the Crown suggests a term of probation that would require Mr. Asouth to abide by a curfew of 11:00 p.m. to 6:00 a.m. I am not inclined to impose that restriction. Especially for a youthful first offender, I regard that as a significant and unjustified curtailment of the person’s liberty.

[104] Moreover, assuming Mr. Asouth makes good on his word that he is intent on pursuing post-secondary studies, a curfew of 11:00 p.m. may result in unintended and undesired restrictions, depending on how far Mr. Asouth may have to travel for his post-secondary schooling.

[105] The Crown also sought a restitution order under s. 738 of the Code in respect of the moneys that were taken from Nick Lin. Again, the evidence of the police witnesses was that the backpack recovered from Mr. Asouth upon his arrest contained, among other things, $181.90 in Canadian currency and $289.30 in U.S. currency. I found that those amounts were consistent with Nick’s evidence.

[106] I decline to make the requested restitution order on the following basis. I agree with the submissions of Mr. Telford-Keogh that, presumably, the money seized by Windsor Police Services upon the arrest of Mr. Asouth has been returned to Mr. Lin, such that a restitution order is not required. I agree.

[107] However, if the Windsor Police Services were in some doubt as to the rightful owner of the moneys seized, which perhaps is understandable, I find that the $181.90 in Canadian currency and the $289.30 in U.S. currency seized is the rightful property of Mr. Yu Chen (Nick) Lin, and ought to be returned to him.

[108] If the matter cannot be resolved and/or requires further clarification, I will seize myself of this narrow issue dealing with the return of the cash proceeds recovered by the police upon the arrest of Mr. Asouth.

Final Disposition

[109] Mr. Asouth, would you please stand.

[110] With respect to your conviction on count no. 4 for breaking and entering into the dwelling house at 212 Geraldine Crescent, I sentence you to a term of imprisonment for eight (8) months, followed by a period of probation of eighteen (18) months, subject to the following terms of probation, in addition to the statutory terms under s. 732.1(2) of the Code:

a. report as required by your probation officer;

b. continue to reside with your mother, Ms. Aliza Zal, at 3413 Bloomfield Road, Windsor, Ontario, N9C 1R6;

c. attend at and participate in any assessment and counselling programs as directed by your probation officer;

d. make reasonable attempts to obtain suitable full-time employment and/or enrol in a full-time or other appropriate education program, and provide proof of such attempts to your probation officer when requested to do so;

e. abstain from the purchase, possession, or consumption of all non-medically prescribed controlled substances;

f. abstain from communicating, directly or indirectly, by any means whatsoever, including any communication through electronic means or social media, with Mr. Ping Yu (Peter) Xue, Mr. Yu Chen (Nick) Lin, Mr. Christian Williams, or Mrs. Michelle Williams, or any one of them or their respective family members;

g. abstain from attending at any known place of residence, place of employment, or place of education of Mr. Ping Yu (Peter) Xue, Mr. Yu Chen (Nick) Lin, Mr. Christian Williams, or Mrs. Michelle Williams, or any one of them or their respective family members;

h. do not possess any firearm, cross-bow, prohibited weapon, restricted weapon, prohibited device, ammunition, prohibited ammunition, and explosive substance, as referenced in s. 109(1) of the Code.

[111] With respect to your conviction on count no. 1 for the assault upon Mr. Christian Williams, I sentence you to a term of 30 days, to be served concurrently with your sentence on count no. 4.

[112] With respect to your conviction on count no. 2 for the assault with a weapon upon Mr. Christian Williams, I sentence you to a term of 90 days, to be served concurrently with your sentence on count no. 4.

[113] With respect to your conviction on count no. 3 for possession of stolen property, I sentence you to a term of 30 days, to be served concurrently with your sentence on count no. 4.

[114] With respect to your conviction on count no. 5 for possession of break-in instruments, I sentence you to a term of six (6) months, to be served concurrently with your sentence on count no. 4.

[115] In addition, I make the following ancillary orders.

[116] Pursuant to s. 743.21(1) of the Code, you are hereby prohibited from communicating, directly or indirectly, including any communication through electronic means or social media, with the complainants Mr. Ping Yu (Peter) Xue, Mr. Yu Chen (Nick) Lin, Mr. Christian Williams, or Mrs. Michelle Williams, or any one of them or their respective family members, during your time in custody. Failure to comply with this order is a crime in itself.

[117] Pursuant to s. 737 of the Code, you are hereby ordered to pay a victim fine surcharge of $1,000 on or before 180 days following your release from imprisonment.

[118] Pursuant to s. 487.051(1) of the Code, I make an order in Form 5.03 authorizing the taking of the number of samples of your bodily substances that is reasonably required for the purposes of forensic DNA analysis. The offence of assault with a weapon contrary to s. 267(a) of the Code, as charged in count no. 2, being a “primary – compulsory offence,” the making of such a DNA order is mandatory. I also make a DNA order in respect of the conviction on count no. 4 for breaking and entering a dwelling home contrary to s. 348(1)(a), being a “primary presumptive offence,” the conviction on count no. 1 for assault contrary to s. 266 of the Code, being an “enumerated secondary offence,” and the conviction on count no. 5 for possessing break-in instruments contrary to s. 351(1), being a “generic secondary offence.” Further, I make an order in Form 5.041 requiring you to attend forthwith to give such samples.

[119] Finally, pursuant to s. 110 of the Code, you are hereby prohibited from possessing any firearm, cross-bow, prohibited weapon, restricted weapon, prohibited device, ammunition, prohibited ammunition, and explosive substance, beginning today and ending five years from your release from imprisonment.

“original signed and made an Exhibit”

J. Paul R. Howard

Justice

Delivered Orally: March 2, 2018

COURT FILE NO.: CR-16-3657

ONTARIO

SUPERIOR COURT OF JUSTICE

BETWEEN:

HER MAJESTY THE QUEEN

– and –

MANDELLA JOHN ARU ASOUTH

REASONS FOR SENTENCE

Howard J.

Delivered Orally: March 2, 2018

[^1]: R. v. Asouth, 2017 ONSC 5651 (S.C.J.) [“Conviction Decision”].

[^2]: Criminal Code, R.S.C. 1985, c. C-46.

[^3]: That said, the evidence of Mr. Asouth at trial was that he “used that second knife to split open his cigars so that he could insert cannabis marijuana in his cigars. Mr. Asouth said he did this at the house party.” See Conviction Decision, at para. 89. However, this apparent discrepancy has not impacted my decision on sentence.

[^4]: Pre-Sentence Report dated November 17, 2017, exhibit no. 1, at p. 4.

[^5]: R. v. M. (C.A.), 1996 CanLII 230 (SCC), [1996] 1 S.C.R. 500, at para. 92.

[^6]: R. v. Johnson, 2016 ONSC 6656 (S.C.J.), at para. 18.

[^7]: R. v. Rockey, 2016 ONCA 891, at para. 31.

[^8]: R. v. Priest (1996), 1996 CanLII 1381 (ON CA), 30 O.R. (3d) 538 (C.A.), at para. 17.

[^9]: Ibid., at paras. 17-18, quoting R. v. Stein (1974), 1974 CanLII 1615 (ON CA), 15 C.C.C. (2d) 376 (Ont. C.A.) at p. 377.

[^10]: R. v. Vandale (1974), 1974 CanLII 1610 (ON CA), 21 C.C.C. (2d) 250 (Ont. C.A.), at para. 4; and R. v. Thurairajah, 2008 ONCA 91, 89 O.R. (3d) 99, 229 C.C.C. (3d) 331, at para. 41.

[^11]: R. v. Snow, 2007 ONCJ 426, at para. 6 [citations omitted]. See also R. v. S. (J.) (2006), 2006 CanLII 22101 (ON CA), 81 O.R. (3d) 511, 210 C.C.C. (3d) 296 (C.A.), at paras. 28-38.

[^12]: R. v. Karp-Johnson, 2017 ONCJ 314, 2017 CarswellOnt 7362.

[^13]: Ibid., at para. 2.

[^14]: See generally R. v. Gladue, 1999 CanLII 679 (SCC), [1999] 1 S.C.R. 688.

[^15]: R. v. Karp-Johnson, at para. 36.

[^16]: See generally Kienapple v. The Queen, 1974 CanLII 14 (SCC), [1975] 1 S.C.R. 729.

R. v. Asouth, 2018 ONSC 1452

Case Summary

Overview

Factual Background

Circumstances of the Offence

Circumstances of the Offender

Impact on the Victims

Legal Parameters

Positions of Crown and Defence

Analysis

Principles of Sentencing

Mitigating Factors

Aggravating Factors

Appropriate Sentence

Final Disposition

Judge

Counsel

Parties

Areas of Law

Fact Patterns

Issues

Statutory Provisions 8

Legal Tests 1

Legislation 1