COURT FILE NO: CR-18-10000294
DATE: 20190705
ONTARIO
SUPERIOR COURT OF JUSTICE
B E T W E E N:
HER MAJESTY THE QUEEN
Emile Carrington for the Crown
- and -
ANDREW DOUGLAS
Steven Stauffer and Kate Zadorozhnya for Mr. Douglas
HEARD: June 28, 2019
REASONS FOR SENTENCE
CORRICK J. (orally)
Introduction
[1] On June 14, 2019, I found Mr. Douglas guilty, following a trial, of robbery while using a firearm, aggravated assault, and discharging a firearm with intent to wound, maim, disfigure or endanger life.
[2] Mr. Douglas appears before me today for sentencing on all counts.
Circumstances of the Offences
[3] These offences arose from a home invasion on March 19, 2013. Mr. Douglas was one of three armed men who entered Richard Kruk’s apartment to steal money and drugs. During the robbery, Mr. Kruk was forced to his knees at gunpoint. When he tried to escape, one of the intruders, Russell Bullock, shot him in the ribcage area with a shotgun. One of the other intruders fired a 9 mm handgun at Mr. Kruk, but missed. That bullet went through the door of an adjacent apartment, ricocheted off the floor, and lodged into a sofa cushion.
Circumstances of the Offender
[4] Mr. Douglas is 26 years of age. At the time of these offences, he had just turned 20. He is a member of a large family with eight siblings. His mother and five of his siblings wrote letters on his behalf advising the court of the vital role family plays in his life and expressing their support of Mr. Douglas. Many of them attended court on June 28. Prior to being incarcerated on unrelated charges in September 2018, Mr. Douglas was living with his mother in Toronto.
[5] Mr. Douglas has two children, a daughter, 18 months old, and a son, who is four years old. He supports himself from work obtained through employment agencies.
[6] At the time of the offences, Mr. Douglas had no criminal record. Subsequently, in 2018, he was convicted in Regina, Saskatchewan of obstructing a peace officer, and fined $500.
Legal Parameters
[7] Robbery while using a firearm is punishable by a maximum of life in prison, and a minimum of five years in prison if the firearm used is a prohibited or restricted firearm. The sawed-off shotgun used in this robbery was a prohibited firearm. Discharging a firearm with intent is punishable by a maximum of fourteen years in prison with the same minimum punishment as robbery. Aggravated assault is punishable by a maximum of fourteen years in prison.
Positions of the Parties
[8] Mr. Carrington, on behalf of the Crown, submits that a total sentence between nine and ten years in prison is the fit disposition, given the aggravating factors in this case and the need for an exemplary sentence to achieve the sentencing objectives of deterrence and denunciation. He also seeks a weapons prohibition order for life and a DNA order.
[9] Mr. Stauffer, on behalf of Mr. Douglas, submits that the appropriate disposition is a sentence of five years in prison, given Mr. Douglas’s relative young age and lack of criminal antecedents. He does not contest the weapons prohibition and DNA orders.
[10] Both counsel agree that Mr. Douglas should be credited for the time he has spent in pre-sentence custody at the rate of 1.5 days for each day. Mr. Stauffer seeks enhanced credit for the 61 days on which Mr. Douglas was subjected to lock-downs while in custody. Mr. Carrington took no position on this issue.
Governing Sentencing Principles
[11] In determining a fit sentence for Mr. Douglas, I am governed by the sentencing principles set out in the Criminal Code.
[12] The first is the fundamental purpose of sentencing set out in s. 718 of the Criminal Code, which is to "contribute, along with crime prevention measures, to respect for the law and the maintenance of a just, peaceful and safe society" by imposing sentences that have one or more of the following objectives:
denouncing unlawful conduct,
deterring the offender and others from committing crimes,
separating offenders from society where necessary,
assisting in the rehabilitation of the offender,
providing reparations for harm done to the victim or to the community,
promoting a sense of responsibility in the offender, and
acknowledging the harm done to victims and the community.
[13] The second is the principle of proportionality set out in s. 718.1. The sentence I impose must reflect the gravity of the offence and the responsibility of the offender.
[14] I am also required by s. 718.2 to take the following matters into consideration when imposing sentence:
❏ the sentence should be increased or reduced to account for any relevant aggravating or mitigating circumstances relating to the offence or the offender;
❏ where consecutive sentences are imposed, the combined sentence should not be unduly long or harsh;
❏ the sentence should be similar to sentences imposed on similar offenders for similar offences committed in similar circumstances;
❏ offenders should not be deprived of liberty if less restrictive sanctions may be appropriate; and
❏ all available sanctions other than imprisonment that are reasonable in the circumstances should be considered for all offenders.
Sentences Imposed in Other Cases
[15] To determine the appropriate disposition, I must consider sentences imposed on similar offenders for similar offences in similar circumstances. I turn to that now.
[16] Mr. Carrington and Mr. Stauffer have each provided me with cases in support of their respective positions on the appropriate sentence.
[17] Counsel agree that the range of sentence for offences arising from home invasions, as set out by the Court of Appeal in R. v. Wright, 2006 ONCA 40975, [2006] O.J. No. 4870, is from four to five years at the low end to eleven to thirteen years or even more in cases involving serious injuries, sexual assault and death.
[18] The decisions relied on by Mr. Carrington support the need for the imposition of penitentiary sentences at the higher end of the range to achieve the sentencing objectives of denunciation and deterrence.
[19] Mr. Stauffer relies on decisions in which the disposition was at the lower end of the range after consideration was given to the offender’s youth, lack of criminal antecedents and the principle of restraint.
[20] It is noteworthy that firearms were not discharged in any of the cases referred to by Mr. Stauffer except R. v. Kwakye, 2015 ONCA 108, [2015] O.J. No. 707 (Ont. C. A.). In that case, an 18-year old first offender was convicted as a party to the offence of manslaughter. The offender’s co-accused shot and killed someone during the course of a home invasion. That is the only detail about the offence set out in the judgment. The Court of Appeal varied a ten-year sentence to seven years, noting the offender’s positive background and lower moral blameworthiness in that he did not foresee that his co-accused would use the gun during the robbery.
[21] An important distinguishing feature of that case from the case at bar is that I have found Mr. Douglas to be a principal offender, not a party to the robbery. He was armed with a firearm that he trained on Mr. Kruk.
[22] I have reviewed all of the cases provided. Although they assist me in determining the governing principles that must guide my decision, a careful review of them demonstrates that sentencing is not an exact science. It is instead a profoundly individualized process driven by the unique facts of every offence and the unique characteristics of every offender. This is particularly so in cases involving home invasions where the variation in circumstances is limitless. The circumstances of any case, including this one, can be readily distinguished from any other case.
[23] Despite this, prior decisions assist in defining the principles that I must apply, and in determining the appropriate range of sentence and the factors that place Mr. Douglas within that range.
[24] It is clear from the jurisprudence that offences that violate the sense of security that people are entitled to feel in their own homes will attract stiff penitentiary sentences even for first offenders. When those offences involve the use of loaded firearms, denunciation and deterrence become the paramount sentencing objectives.
[25] I propose to discuss only one of the cases submitted in any detail, that of R. v. Bullock, [2015] O.J. No. 3456. Mr. Bullock was one of the other men, who along with Mr. Douglas, robbed Mr. Kruk. He was found guilty by Justice A. O’Marra of twelve offences arising from the events of March 19, 2013. He was sentenced to a total of eight years in the penitentiary for aggravated assault, armed robbery, discharging a firearm with intent and a number of firearm possession offences. In addition, he was sentenced to 18 months consecutive for possession of a firearm in breach of a firearms prohibition order, for a total sentence of 9½ years.
[26] Although it is an agreed fact at this trial that Mr. Bullock shot Mr. Kruk with the shotgun, Justice O’Marra was unable to make that finding on the basis of the evidence before him. He found that Mr. Bullock was one of Mr. Kruk’s armed assailants and a party under s. 21 to the armed robbery, aggravated assault, and discharge of firearm offences.
[27] Mr. Bullock was 19 years old at the time of the offences, and 21 when he was sentenced. He was raised by a single mother from a young age and saw his father only rarely. Unlike Mr. Douglas, Mr. Bullock had a related criminal record. About one year before these offences, he was found guilty as a youth of possession of a Schedule I substance, discharge of a firearm with intent, possession of a firearm, and aggravated assault. He was sentenced to 18 months secure custody.
Impact on the Victim
[28] The severe and enduring effects on Mr. Kruk of the events of March 19, 2013 are vividly detailed in a Victim Impact Statement that Mr. Carrington read to the court.
[29] Mr. Kruk suffered a broken scapula and broken ribs from the shotgun blast. Half of his lung was removed. Forty shotgun pellets remain in his chest cavity. He was in hospital for several weeks, following which he was bed-ridden for two months.
[30] At the time of the offences, he was a professional athlete. He is now unable to pursue his dream and goal of being a professional fighter and martial artist, something he had worked towards for twenty years.
[31] To this day he suffers from chronic pain, PTSD, depression, high blood pressure and heart problems. He was unable to work for eighteen months, and has only recently started teaching martial arts again. His situation has also been a great burden on his family.
[32] In summary, Mr. Kruk reports that, “All in all, I have been ruined.”
Aggravating and Mitigating Circumstances
[33] I turn now to consider the aggravating and mitigating circumstances.
[34] First the aggravating factors. The sanctity of Mr. Kruk’s home was invaded by three men, all of whom were armed with guns, at least two of which were loaded. All three firearms were trained on Mr. Kruk. Mr. Douglas was one of those men. When Mr. Kruk attempted to flee, he was shot in the back at close range, causing very serious injuries that almost cost him his life. He continues to suffer from the physical, emotional, financial and psychological effects of these crimes.
[35] This was not a crime committed on the spur of the moment. It required planning and pre-meditation. The men knew that there was a safe in Mr. Kruk’s apartment. They duped someone into being their get-away driver, directing him to park his car at a location that was easily accessible from the back exit of Mr. Kruk’s apartment building. Mr. Douglas armed himself.
[36] Two of the firearms used in this offence were discharged. One bullet missed its target, and entered through the door of an apartment occupied by a family, unwitting strangers to the violence occurring outside their apartment door.
[37] In mitigation, Mr. Douglas was youthful at the time of these offences, having just turned 20. He had no criminal record at the time, although he now has a minor one. He has strong family support, which will assist him in his rehabilitation.
[38] In addition, as Mr. Stauffer indicated, Mr. Douglas made a number of admissions alleviating the necessity of having Mr. Kruk testify and relive these events.
Determination of a Fit Sentence
[39] As I have already indicated, denunciation and deterrence, both general and specific are of paramount importance in cases involving home invasions and the use of firearms. Fourteen years ago, Justice Armstrong of the Ontario Court of Appeal described the possession and use of illegal handguns in the Greater Toronto area as a cause for major concern in the community: R. v. Danvers (2005), 2005 ONCA 30044, 199 C.C.C. (3d) 490, at para. 78. Unfortunately, this concern, now heightened, persists to the present day.
[40] Mr. Douglas’s participation as a principal in an armed robbery in Mr. Kruk’s own home during which Mr. Kruk almost lost his life warrants a custodial sentence that adequately expresses society’s condemnation of his conduct.
[41] Given Mr. Douglas’s youth at the time of these offences and lack of criminal record, I cannot overlook the objective of rehabilitation, and the principle of restraint.
[42] In addition, I have considered the well-established principle in our jurisprudence that the length of a first penitentiary sentence for a youthful offender should not be determined solely on the basis of denunciation and deterrence: R. v. Borde, 2003 ONCA 4187, [2003] O.J. No. 354 (Ont. C.A.)
[43] The circumstances of this home invasion during which Mr. Kruk was shot and grievously injured, places these offences at the high end of the range articulated in Wright. Were it not for the eight-year sentence imposed on Mr. Bullock, I would have considered a ten-year sentence to be the fit disposition in this case. However, I consider the principle of parity to be an important one, particularly when offenders are youthful. In light of that, I sentence Mr. Douglas to eight years in the penitentiary on each count to be served concurrently.
Credit for Pre-Sentence Custody
[44] Mr. Douglas will be given credit for 356 days of pre-sentence custody at the rate of 1.5 to 1, in accordance with s. 719(3.1) of the Criminal Code and R. v. Summers, 2014 SCC 26, reducing his sentence by 534 days.
[45] Mr. Douglas provided an affidavit to the Court setting out the conditions in which he has served his pre-sentence incarceration at the Toronto South Detention Centre. He has experienced 61 full or partial lockdowns throughout the 356 days he has been at that institution. All but four of the lockdowns were due to staff shortages.
[46] When the institution was locked down, Mr. Douglas was permitted to be out of his cell for only 20 minutes a day. He was often not permitted to have family visits, which was difficult for him as his daughter was very ill and had to undergo several surgeries. Without visits from his family he was unable to receive information about her health. His ability to shower was also curtailed during lockdowns. On several occasions he was only permitted to shower once every three days, and sometimes, only once a week. Not surprisingly, during lockdowns, tensions in the institution rise and violence is more prevalent.
[47] I am satisfied that Mr. Douglas was subject to harsh conditions during the lockdowns that was detrimental to his well-being. As a result, I will credit him a further 20 days, pursuant to R. v. Duncan, 2016 ONCA 754.
Ancillary Orders
[48] I also make the following ancillary orders.
[49] Mr. Douglas will be subject to a weapons prohibition order for life pursuant to s. 109 of the Criminal Code.
[50] Finally, Mr. Douglas has been convicted of primary designated offences and I make a DNA order pursuant to s. 487.051(1) of the Criminal Code authorizing the taking of a DNA sample from him.
Conclusion
[51] In conclusion, Mr. Douglas is sentenced to eight years in prison on each count to be served concurrently. That sentence is reduced by 554 days, leaving a total of 2,366 days left for Mr. Douglas to serve.
Corrick J.
Released: July 5, 2019
COURT FILE NO: CR-18-10000294
DATE: 20190705
ONTARIO
SUPERIOR COURT OF JUSTICE
HER MAJESTY THE QUEEN
– and –
ANDREW DOUGLAS
REASONS FOR sentence
Corrick J.
Released: July 5, 2019