COURT FILE NO.: CR-18-30000080-0

DATE: 20180514

ONTARIO

SUPERIOR COURT OF JUSTICE

B E T W E E N:

HER MAJESTY THE QUEEN

• and -

GARRIE GARRELL

Jason Gorda, for the Crown

John Navarrete, for the Offender

HEARD: April 13, 2018

M. DAMBROT J.:

1Garrie Garrell was tried by me with a jury on an indictment alleging that he, on or about the 25th day of June in the year 2015, in the City of Toronto, did rob Mitchell Karimghassabpour while armed with a firearm, namely a handgun. The jury returned a verdict of guilty of this offence on February 16, 2018. I am now called upon to impose sentence.

The Offence

2There have been many facts in dispute in this case, and there are some differences between the Crown and the defence that remain unresolved even after the jury’s verdict. I will sentence the offender on the basis of the following outline of the facts, which I derive from the things necessarily decided by the jury in arriving at their verdict together with factual findings I have made beyond a reasonable doubt based on the evidence adduced in this trial.

3In June of 2015, Mr. Garrell was a 54 year-old man living with his friend Nancy McWhirter in an apartment in the area of Don Mills Road and Sheppard Avenue East in Toronto. He was unemployed, and living on his ODSP payments, his friend’s pension and rent from a sub-tenant. While he undoubtedly had older friends as well, the offender spent time with a number of teenage boys in the neighbourhood, consuming marihuana and “chilling” with them in his apartment.

4Fifteen year-old Terrell Gyabeng, one of the neighbourhood boys associated with Mr. Garrell, went to school with Mathew and Mitchell Karimghassabpour. Mathew was the older of the brothers, and was a marihuana dealer. Mr. Gyabeng owed Mathew money, and Mathew told someone to beat him up. Mr. Gyabeng didn’t like this, and formed a plan to do a home invasion robbery of the Karimghassabpour house with his friends. The plan was to go to Mathew’s basement bedroom and take his drugs and his money. He hoped that Mathew would be home when they entered the house, so that they could “send a message.”

519 year-old Chrstopher Davidson lived on Mr. Garrell’s street and had known him for a few years. He had been at his apartment many times. He knew that Mr. Garrell’s girlfriend also lived there, and said that she was often there when he was. He would hang out with Mr. Garrell, chill and smoke weed with him sometimes. Mr. Gyabeng recruited Mr. Davidson to be part of the home invasion plan. Mr. Davidson was living on his own at the time, and needed money. Mr. Gyabeng told him that his role was to be an extra person – to provide muscle if anything happened or went wrong. A few days after first being told about the plan, Mr. Davidson learned that Mr. Garrell was also involved. He and Mr. Garrell met with each other, and also spoke on the phone. Mr. Garrell told Mr. Davidson that he, Mr. Garrell, was to be the driver, and that Mr. Davidson was to be muscle.

6Tamuka Mapika was 19 years old at the time of the robbery. He was a close friend of Mr. Davidson and was living with him. Mr. Mapika got a call from Mr. Garrell in the afternoon before the robbery, summoning him to a meeting. He met with Mr. Garrell, Mr. Davidson and Mr. Gyabeng, whom he knew as TJ, in Mr. Garrell’s truck. Mr. Mapika was told that the men were planning to do a home invasion. The plan was Mr. Gyabeng’s. Mr. Garrell said that “it’s business, something that has to be done, and that they could all eat from it”, meaning that they could all get money from it. Mr. Mapika testified that he decided not to participate in the robbery.

7Mr. Davidson was called as a witness at this trial. When he was shown his cell phone records, he acknowledged communicating with Mr. Garrell between 9:30 and 9:46 p.m. on June 25, shortly before the home invasion. He explained that he was calling Mr. Garrell to verify that they were going through with the plan.

8The men met at Parkway, a community centre at Donlands and Sheppard, on the day of the event. Mr. Garrell showed up alone in a red vehicle rather than his van because it was small and fast – better for a getaway. The remaining members of the plan, except for Mr. Davidson, arrived after Mr. Garrell. They all got into the car and drove to their destination – a house on Charlemont Crescent near Victoria Park and Sheppard. They picked up Mr. Davidson on the way.

9When the men got to Charlemont Crescent, it was late in the evening on a weekday. A car was in the driveway of the targeted home and some lights were on. No one could doubt that there were people in the house, which was unsurprising in any event. The robbers, including Mr. Garrell, were aware that people were home before anyone got out of the car. Undeterred, the robbers parked the car on the top of a hill at the top of the street near the home, and then all of them except Mr. Garrell got out and made their way to the house. Mr. Garrell waited in the vehicle. The robbers were dressed in black or dark clothing, and they all covered their faces with bandanas when they arrived in the area.

10When the robbers got to the Karimghassabpour house, Mohammad Karimghassabpour, his wife Karin Ucke and their son Mitchell were all inside. Mathew was not home. Mohammad ran his own courier service, and Karin was an accountant. They shared a bedroom on the main floor of their home. Mathew, who was 17 at the time, and Mitchell, who was 15 at the time, each had a bedroom in the basement, and shared a sitting area. Mathew had dropped out of school probably around December 2014, although he apparently was still attending some classes. Mitchell, who was still in school, was not known to sell drugs.

11Mitchell heard a knock on the door of the home at about 10:30 p.m. When he opened the door he saw someone there with his head down, wearing a hoodie and a ski mask. Another man immediately came from around the corner and pointed a revolver at Mitchell. Mitchell thought it was a Smith and Wesson. This second man pushed Mitchell into the house and pressed him against the bench in the entrance. Then about five young men dressed in black or grey athletic clothes and wearing hoodies, ski masks and gloves barged in without Mitchell’s permission and against his will. The intruders immediately headed downstairs. The man with the gun held Mitchell from behind and brought him downstairs to a couch. When Mitchell got to the basement, he saw two or three of the men go at once into his brother’s bedroom and start searching. One of them took an Xbox, a pair of his brother’s Jordan shoes and an iPhone. He saw another man searching in his bedroom.

12The man with the gun then took Mitchell into his bedroom, put his gun to Mitchell’s head, asked him if he wanted to get shot and demanded money. Mitchell gave him his wallet, and the man removed the $35 that was in it and tossed the wallet onto the bed. Mitchell thought that the other men were ransacking the house and taking things.

13At this point, Mohammad Karimghassabpour came to the top of the stairs and asked Mitchell what was happening. Mitchell was directed to go to the bottom of the stairs and say that nothing was happening, which he did. At that point the man with the revolver and a second man who also had a gun, which Mitchell believed was a Colt, came up behind Mitchell with their guns out. Mohammad Karimghassabpour moved down the stairs and grabbed the barrel of the first man’s gun. The man pulled the gun away, while Mitchell ran upstairs. Mohammad Karimghassabpour also got back upstairs and locked the door. He then realized that there were two men coming up the stairs from the basement carrying guns, and two more behind them without guns. One of the men shot him twice, once in the pelvis, and once in the abdomen. After he fell, one of the men kicked him in the face, breaking his two front teeth and cutting his forehead open, and in the back, fracturing his spine.

14Neither Mitchell nor Mohammad could identify any of the intruders because they were masked. The men escaped with five or six pairs of Jordan sneakers, which were worth $150 to $400, an X Box, iPhones and some money.

15I find as a fact that it was a part of the plan agreed to by all of the robbers, including Mr. Garrell, to conduct a home invasion robbery of the Karimghassabpour family while armed with firearms. I disbelieve Mr. Gyabeng’s evidence that they intended to enter the house with the use of a crowbar, and Mr. Davidson’s evidence that he understood from Mr. Gyabeng that they were going to enter through an open window. These were simply transparent efforts to minimize their culpability. The jury verdict and the evidence that I accept point in an entirely different direction. Based on my instructions, in order to convict the offender of robbery, the jury necessarily found that Mr. Garrell (1) knew that some of the men would be armed with a firearm; (2) knew that some of the men would use threats of violence to prevent resistance to the stealing; or (3) was wilfully blind to one or the other of (1) or (2). Based on the totality of the evidence, I am satisfied beyond a reasonable doubt of the first of these three alternatives: Mr. Garrell knew that at least two of the men would be, and in fact were, carrying firearms. I further find that Mr. Garrell knew that these firearms were to be used in the commission of the offence.

16I reach this conclusion having regard to the following:

• Mr. Garrell was one of the leaders in formulating and executing the plan. He undoubtedly knew its details. He actively recruited others to participate, provided transportation to and escape from the robbery for young persons who had limited ability to otherwise carry out this crime, provided the means to transport their loot, and was the custodian of the loot in the days following the robbery.

• Perpetrators of a plan to enter a residence and carry out a home invasion robbery on a weeknight while the occupants would likely be home would almost inevitably be armed, as these confederates were, in case the residents were awake, woke up or challenged them.

• As I have already noted, the suggestions made by one witness that the robbers in this case intended to enter the residence through an open window and by another that they intended to enter with the use of a crowbar in the circumstances of this case are fanciful. This is confirmed by the fact that the robbers did not look for an open window or explore the possibility of using a crowbar before entering. Instead they immediately rang the bell, and when a resident answered they immediately forced entry.

• The robbers were masked, and were obviously prepared to encounter and overcome the occupants knowing that they would not be disclosing their own identities by doing so.

• At least one of the robbers had a gun out even before the robbers sought entry into the home, and used it immediately to take control of Mitchell when he answered the door.

17I conclude that Mr. Garrell was a leading and essential participant in the scheme, engaged in it for financial gain, and was fully aware of all aspects of the scheme.

The Impact of the Offence on the Victims

18The offence that Mr. Garrell actively participated in has had profound effects on the victims. As I noted, Mitchell Karimghassabpour was threatened with a gun held to his head, and Mohammad Karimghassabpour was shot twice, once in the pelvis, and once in the abdomen. After he fell, he was kicked in the face and the back. The kicks broke his two front teeth, cut his forehead open and fractured his spine. Despite lengthy hospital treatment, physiotherapy and nursing care, he has ongoing physical and emotional difficulties. He suffers constant pain and sleeps only two or three hours each night. He has continuous ringing in his ears. He required tooth implants. He has permanent loss of strength in his leg and constant pain. He takes prescription medication for the pain, and nerve and anti-depressant medication for the emotional consequences of the crime. He also requires the use of a walker. He cannot sit for more than two hours at a stretch, and cannot work a full day in his office.

19In addition, the home invasion has had a profound impact on the entire Karimghassabpour family. Mohammad Karimghassabpour is said to have aged 10 years in 20 months. He is no longer the person he was emotionally as well as physically. The family as it was before the crime no longer exists. Its members no longer engage in activities together, and do not feel secure in their home. Their emotional state is fragile. They are a broken family.

The Offender

20Mr. Garrell is now a 54 year-old man. He was born in Toronto, and is one of four children. His family was the only African family in his neighbourhood. He had a stable and normal upbringing, with hard working and caring parents. He was a highly intelligent young man and was moved forward two grades in school. As a result, he did not fit in well with his classmates, and experienced some bullying. He also had some negative experiences resulting from racism. Nevertheless, he says that he had good marks and completed high school.

21Despite Mr. Garrell’s intelligence, he has had a very turbulent life. He has fathered at least five children with at least four women. His first child was born when he was 16. He has a long history of alcohol and drug abuse and criminal behaviour, and a chequered employment history.

22Mr. Garrell’s criminal record begins in 1979 when he was 18 years old, and continues to 2008, except for a drive under suspension offence in 2011. He has been convicted of almost 75 offences. These include five alcohol-related driving offences as well as other driving offences; countless property offences including five break and enter offences, a great many theft and possession offences and an offence of unlawfully being in a dwelling house; a large number of fraud and uttering offences; several assault and assault causing bodily harm offences; and a number of administration of justice offences. While he has served many sentences of imprisonment, he has never served time in a penitentiary.

23There has been a long gap in Mr. Garrell’s record, which is attributed to his relationship with Ms. McWhirter, but any suggestion that this reflects true rehabilitation is diminished by his involvement in this offence. A sudden escalation to a serious crime of violence motivated by greed at his advanced age cannot be accounted for as an isolated slip by a reformed man. However changed his behavior may have been since 2008, he remains a man with a challenged moral compass. I say this being fully aware that a number of individuals have written letters of support for him.

24Unfortunately, Mr. Garrell has a history of health problems. He continues to suffer from asthma and moderate COPD, and requires inhaled and oral medication. In addition, he has had multiple left hip surgeries, and as a result, ironically, he has mobility problems and requires the use of crutches.

Aggravating Factors

25I have already discussed the aggravating features of this offence. Stated briefly, they include the following:

• Home invasion robbery is a very serious offence.

• This home invasion robbery was particularly serious because:

o It was planned

o Force was contemplated

o A particular victim was targeted for harm

o It was undertaken late in the evening on a weekday when people would likely be home

o It included the use of masks, gloves and disguises

o It actually involved serious and callous violence with a loaded firearm, followed by additional gratuitous violence.

• Significant and life changing psychological harm was done to the victims, one of whom was also left with permanent and serious physical injuries.

• The offender is a mature man who committed an offence in concert with much younger men.

• The offender has a very lengthy criminal record that includes at least five prior break and enter offences and an unlawfully in a dwelling house offence, as well as other crimes of violence.

Mitigating Factors

• The offender was not the shooter.

• Despite the length of the offender’s criminal record, he has never been sentenced to a term of imprisonment in a penitentiary.

• The offender had a seven-year gap in his criminal record prior to this offence.

• The offender has the special medical needs that I have outlined.

• The offender has the support of a number of people who view him in a different light than is revealed by this offence and his criminal antecedents.

• The offender has spent over 2½ years on house arrest.

Other Considerations

26Only two of the other participants in this robbery have been convicted. The identity of the remaining participants is unknown, and the identity of the shooter has not been established.

27Mr. Gyabeng pleaded guilty to robbery as a young person under the Youth Criminal Justice Act and was sentenced to an effective sentence of 15 months in custody followed by 12 months of probation.

28Mr. Davidson pleaded guilty to robbery as an adult and was sentenced to imprisonment for 2 years less one day in addition to 1 year of pre-trial custody, followed by a period of probation.

The Position of the Parties

29Crown counsel recommended a sentence of imprisonment for 9 years. Counsel for the accused initially recommended a sentence of imprisonment in the range of 5 to 7 years, but in the end, recommended a sentence of 7 years of imprisonment less 6 months to take into account 2½ years of house arrest.

Analysis

30Home invasion is not a crime. Rather, it is a category of crimes defined by the courts that mark offences as particularly serious. In R. v. Wright (2006), 83 O.R. (3d) 427 at para. 13, the Court of Appeal described a home invasion as a “forced entry into the victims’ home for purposes of committing a theft or robbery, knowing that (or being reckless as to whether) the home was being occupied, and by the accompanying use or threatened use of violence with guns, together with the confinement of the occupants of the home.” This offence clearly fits the definition. The court in Wright described home invasion as a serious, and increasingly prevalent, crime in our society, which must be denounced as totally unacceptable in a civilized society. As was noted in R. v. S.(J.) (2006), 81 O.R. (3d) 511, 210 C.C.C. (3d) 296 (C.A.) at para. 34, home invasions “are very serious because they represent a violation of the sanctity of the home and of the sense of security people feel when in their homes - highly cherished values in our society - and because they are frequently perpetrated against vulnerable individuals.” Accordingly, the courts must deal with home invasions very sternly. Otherwise, we invite citizens to resort to self-help to protect themselves.

31As a result, in imposing sentence on Mr. Garrell, I am obliged to give priority to the sentencing objectives of deterrence and denunciation, although prospects of rehabilitation must still be taken into account. Lengthy penitentiary terms have long been considered to be fully warranted upon conviction for a home invasion offence. (See R. v. Nelson (M.) (2001), 147 O.A.C. 358 at para. 15 (C.A.).)

32I turn next to the appropriate range of sentence for a home invasion. Returning to Wright, the Court there recognized the difficulty in fixing an appropriate range of sentence for a crime that can be committed in a myriad of circumstances, and, at para. 23, settled on a broad range of four to 13 years. That range was most recently affirmed by the Court of Appeal in R. v. Hejazi, 2018 ONCA 435 at para. 5, where the court stated that the trial judge “correctly observed this court’s conclusion that the sentencing range for home invasions is between 4-13 years’ incarceration, with the high end of the range being appropriate for offences involving violence or sexual assaults: see R. v. Wright, (2006), 83 O.R. (3d) 427, at para. 23.”

33In this case, s. 344(1)(a.1) mandates a minimimum punishment of four years imprisonment because of the finding I have made that Mr. Garrell knew that a firearm was being used in the commission of this offence. However the mimimum is of little moment in this case. Mr. Garrell’s offence would attract a sentence well in excess of four years regardless of the minimum. This offence readily fits the category of cases that call for a sentence at the high end of the range. It not only involves violence and the callous use of a firearm resulting in permanent harm to one of the victims, but it also involves an offender with a significant criminal record, including offences involving the unlawful entry into premises, although they were not robberies and apparently did not involve violence.

34Sentencing for a home invasion, however, calls for a particularly nuanced approach, requiring a careful examination of the circumstances of the case, the nature and severity of the acts perpetrated in the course of the home invasion, and the situation of the individual offender. (See Wright at para. 24.) In this case, I will impose a sentence that is somewhat below the high end of the range because the offender was not personally armed, did not personally use violence, and has some significant health issues. I also give some effect to the principle of parity, although the offender’s position is markedly different than the positions of Mr. Mapika and Mr. Davidson, who pleaded guilty, who are very young, and who did not have criminal records comparable to the record of Mr. Garrell. In the end, I cannot avoid imposing a very lengthy penitentiary term.

Disposition

35Doing my best to give appropriate weight to the relevant principle of sentence and the aggravating and mitigating factors, I impose a sentence of nine years imprisonment, less six months credit for over 2½ years on house arrest, for an effective sentence of 8½ years imprisonment. I also impose a DNA order and a s. 109 order for life.