R. v. Kotzma, 2024 ONSC 276

COURT FILE NO.: CR-16158/23 DATE: 20240115

ONTARIO SUPERIOR COURT OF JUSTICE

BETWEEN:

HIS MAJESTY THE KING – and – TREVOR KOTZMA, MICHAEL RODGERS and ALEXANDER NICHOLAS MAHON-FERNANDES Defendants

Counsel: Mr. A. Midwood and Ms. A. Yorgiadis, for the Crown Ms. L. Giordano, for the Defendant Trevor Kotzma Ms. M. Wyszomierska, for the Defendant Michael Rodgers Ms. J. Klein, for the Defendant Alexander Nicholas Mahon-Fernandes

HEARD: August 9 and November 22, 2023

Reasons for Sentence

M.K. Fuerst J.:

Introduction

1Courts have repeatedly warned that those who commit home invasion offences can expect to receive hefty sentences of imprisonment. The tragic circumstances of this case illustrate why that is so.

Background

2In 2021 Trevor Kotzma was an associate of a man to whom I will refer as Mr. X. Mr. Kotzma also knew Michael Rodgers, who in turn knew Mr. X.

3Alexander Mahon-Fernandes was a friend of Mr. X’s brother. He often visited at the Oshawa home where the brothers lived.

4Mr. Mahon-Fernandes owned a 2018 Dodge Charger.

5In November 2021, Maurice Fullerton and Jaclynn Murdoch lived in a house at 54 Pembry Drive in Ajax. Tyshon Morton tenanted the basement of the residence. None of the three were known to Mr. Kotzma, Mr. Rodgers, or Mr. Mahon-Fernandes.

The Offences and Their Circumstances

(a) The Home Invasion

6Beginning on November 10 and into the early morning hours of November 11, 2021, there were numerous calls between Mr. Kotzma’s cell phone and that of Mr. X. In addition, dozens of photographs of Maurice Fullerton were downloaded from Facebook to Mr. Kotzma’s cell phone. Two photographs of a hand-drawn blueprint of the main and basement levels of 54 Pembry Drive were created on the cell phone.

7There also were cell phone messages and calls between the cell phones of Mr. Rodgers and Mr. X, and the cell phones of Mr. Rodgers and Mr. Kotzma.

8On the evening of November 10, 2021, Mr. Mahon-Fernandes was at the home of the X brothers. Mr. Mahon-Fernandes was having financial problems because of the impact of the COVID-19 pandemic on his employment. He asked his friend to help him out financially. Mr. X was present for the conversation. He said that he needed a ride, and in return he would help out Mr. Mahon-Fernandes financially. Although no specific amount of money was discussed, Mr. Mahon-Fernandes believed that it would cover his car and insurance payments totalling about $1000. He did not ask Mr. X any clarifying questions.

9In the early morning hours of November 11, 2021, Mr. Kotzma and Mr. Rodgers, who were waiting on the street, were picked up by the Dodge Charger driven by Mr. Mahon-Fernandes. Mr. X was a passenger in the car. Neither Mr. Kotzma nor Mr. Rodgers had previously met Mr. Mahon-Fernandes.

10Mr. X directed Mr. Mahon-Fernandes to the area of Patterson Crescent and Pembry Drive in Ajax. The Charger arrived there at 3:42 a.m., after a stop at a gas station convenience store where Mr. Kotzma and Mr. Rodgers bought cigarettes. Mr. Mahon-Fernandes recalls no conversation in the car other than driving directions given by Mr. X.

11At 3:45 a.m., while the Charger idled on Patterson Crescent, Mr. X, Mr. Kotzma, and Mr. Rodgers (“the group”) got out of the car. Mr. X wore a black and red True Religion brand jacket, gloves, and blue camo patterned pants. He had a hood over his head and his face was covered. Mr. Rodgers wore black Nike pants, a black hoody sweater, and gloves. His face was covered. Mr. Kotzma wore jeans, a black sweater with a hood, and gloves. His face was covered.

12The group walked eastbound along Pembry Drive, then returned westbound and went up to 54 Pembry Drive. The three males approached the front door of the house. Mr. Rodgers was thinking that there might be no-one home. In fact, Mr. Fullerton and Ms. Murdoch were on the main floor of the house, and Mr. Morton was in the basement.

13Mr. Kotzma smashed out the glass pane insert to the front door with his hand, causing it to bleed. All three men entered the house. It was immediately obvious that the home was occupied, but the group proceeded nonetheless.

14Ms. Murdoch woke up Mr. Fullerton. They both went to the front hallway. Ms. Murdoch saw the masked men enter the home and confront Mr. Fullerton, who was pushed back by the group in the front hallway. Within seconds there was a gunshot, and Mr. Fullerton was shot through the shoulder. The bullet penetrated his lung and internal organs before lodging in his leg. He went down to the ground in the front hallway, bleeding internally.

15Neither Mr. Kotzma nor Mr. Rodgers entered the home with a firearm on his person, nor did either man possess a firearm at any point that night. They did not see Mr. Fullerton in possession of a firearm.

16Mr. Kotzma was in the immediate vicinity of where the shooting occurred. He saw Mr. X physically engaged with Mr. Fullerton when he heard the shot, but he did not see the firearm itself. Mr. Rodgers was positioned behind Mr. Kotzma and Mr. X, in the immediate vicinity of where the shooting occurred. He saw Mr. X physically engaged with Mr. Fullerton when he heard the shot, but he did not see the firearm itself when it discharged.

17Mr. Kotzma grabbed Ms. Murdoch by the hair and dragged her down the hallway to the basement stairs. They proceeded down the stairs, as Ms. Murdoch yelled to “call 911…they shot Mo”. She broke free of Mr. Kotzma as they went down the stairs, but he pursued her as she ran in the basement. He punched Ms. Murdoch in the head, threw her over a table, and kicked her in the chest and face multiple times. This was witnessed by Mr. Morton, who was laying on the ground. Mr. Rodgers was not in the basement at the time. Mr. Kotzma took the cell phones of Ms. Murdoch and Mr. Morton, and went back upstairs.

18Mr. Morton was then brought upstairs. Mr. X demanded, “Where is the stuff” as Mr. Morton tended to Mr. Fullerton, who was in the hallway, near death. Mr. Kotzma, Mr. Rodgers and Mr. X remained inside the house for over 20 minutes, searching it and causing significant damage.

(b) The Movements of the Dodge Charger

19After the group got out of the Charger, Mr. Mahon-Fernandes circled the block around Patterson Crescent and Pembry Drive. His music was on in the car and he could not hear anything from the area of 54 Pembry Drive. He was not specifically aware of the events that occurred in the house as he circled the block.

20However, Mr. Mahon-Fernandes admits he was aware the group he was assisting was going to enter a home that was not theirs and take property, that they were disguised for that purpose, and that violence was a probable consequence of this plan. He admits that he acted intending to assist the group in committing the robbery.

21Video surveillance from nearby homes showed males from the group moving property from the house to the Charger, which continued to circle the block. The property taken by the group included cell phones, wallets, gaming systems, and jewellery.

22Mr. Mahon-Fernandes later told the police that the men were not saying anything to him as they came back and forth to the car, although they said things to each other. He figured he would just keep circling. At some point he believed that something had gone wrong. He asked one of the men what was going on, but he received no response.

23Mr. Mahon-Fernandes did not possess a firearm that morning.

(c) The Get-Away

24At some point while the group was in the house, Mr. Rodgers said in the presence of Mr. Kotzma, “Let’s go”. Mr. X responded, “I can’t leave without it…help me find it”. He said that he was missing his “stick”, meaning his firearm.

25At 4:10 a.m., while the Charger was along Patterson Crescent, the group ran from the residence and got into the car. Mr. Kotzma directed Mr. Mahon-Fernandes to a house on Highland Avenue in Oshawa. Mr. Kotzma talked about an injury to his hand.

26Mr. Mahon-Fernandes did not recall there being any other conversation in the car.

27Meanwhile, emergency personnel were called to 54 Pembry Drive. Mr. Fullerton died from the gunshot wound he sustained. Ms. Murdoch had a seizure on scene and briefly lost consciousness. She was taken to hospital. She suffered bruising and cuts to her arms and legs, and pain in her ribs as a result of the attack. She also experienced psychological trauma.

(d) After-the-Fact Conduct and Arrests

28At 4:34 a.m. the Charger arrived at 373 Highland Avenue in Oshawa, the residence of Melissa Perry. Video surveillance camera footage showed Mr. X, Mr. Kotzma, Mr. Rodgers, and Mr. Mahon-Fernandes removing bags and other items stolen from 54 Pembry Drive from the car and bringing them into the residence.

29Mr. Mahon-Fernandes wiped down the interior and exterior of his car, including the door handles, with wipes from his trunk. He later told the police he did this because he “wanted everything gone”.

30All four men went to the living room where Mr. X, Mr. Kotzma, and Mr. Rodgers sorted and divided the property. All four men discarded some of their clothing. At one point Mr. Kotzma and Mr. Rodgers heard Mr. X say he lost his “stick” and was “out $4500”. Mr. Mahon-Fernandes heard Mr. X talk about how he had lost something.

31Meanwhile, police “pinged” the stolen cell phone of Mr. Morton. It returned as at 373 Highland Avenue. Around 5:00 a.m. police set up a large containment in the area. Mr. Mahon-Fernandes fled the house through a back window, leaving his Charger, which contained his wallet, behind.

32At 5:45 a.m. a taxi was seen attending the house, then leaving. It was stopped by police. The passengers were Mr. X and Mr. Rodgers. They were arrested. The taxi was searched, and items including identification in the name of Mr. Fullerton, electronics, and jewellery was found.

33Mr. Kotzma remained at 373 Highland Avenue. He told Ms. Perry to tell the police he was with her there all night. He tried to contact Mr. X by cell phone at 5:49 a.m. Around 7:00 a.m. the police told the occupants of the house to come out. When Mr. Kotzma exited the residence, he was arrested. The police searched the house and found items including the victims’ cell phones, Ms. Murdoch’s heath card, a wallet containing Mr. Fullerton’s identification, and clothing discarded by the offenders.

34The next day, after seeing a television news report about a homicide at the Pembry Drive address, Mr. Mahon-Fernandes asked Mr. X’s brother, “What the fuck did I get into?”, but he received no information. He borrowed a car and continued to go to work in the following days, but stayed with friends rather than returning home. He changed his phone number. He asked Mr. X’s brother about getting a lawyer, but was told not to say anything. He was arrested on November 22, 2021, and gave a voluntary statement to police.

35At 54 Pembry Avenue the police found a handgun on the main floor, and a spent cartridge shell nearby. Forensic examination established that the handgun fired the bullet retrieved from Mr. Fullerton’s body at autopsy.

The Guilty Pleas

36Mr. Kotzma pleaded guilty to manslaughter, and assault causing bodily harm of Ms. Murdoch. Mr. Rodgers pleaded guilty to manslaughter. Mr. Mahon-Fernandes pleaded guilty to robbery. The Crown did not reference use of a firearm for the purpose of invoking a mandatory minimum sentence for any of the offenders.

The Victim Impact Information

37Victim Impact Statements were provided by Ms. Murdoch, her mother, the mother of Mr. Fullerton’s children, and two of his aunts. All of them say that their lives were changed forever by Mr. Fullerton’s death and its circumstances. Ms. Murdoch described feeling pain, helplessness, anger and depression at the loss of the man who meant the world to her. In addition to having physical reminders of what happened that night, she lives in constant fear that someone is coming into her house. Heather Berry, the mother of Mr. Fullerton’s children, described their struggles with grief over the loss of their father. Their lives are marked by sadness, anxiety, anger, and lack of trust in others.

The Circumstances of Mr. Kotzma

38Mr. Kotzma was 25 years old at the time of his offences. He is now 27 years old. His upbringing was unsettled and marked by neglect. His parents separated before he started school. He then lived with his father for several years, but that ended because he was abused by his father’s girlfriend. He went to live with his mother, but her home environment was chaotic. At some point, he became a temporary ward of the Children’s Aid Society. He bounced around various group homes, and was in and out of youth custodial settings.

39Mr. Kotzma reportedly was diagnosed with Attention Deficit Disorder and Oppositional Defiance Disorder as a youth. He did not finish high school.

40As an adult, he has lived a transient lifestyle. He is typically homeless, and accesses the shelter system. He abuses both cocaine and alcohol. While he has worked as a roofer, his employment has not been steady. He was last employed in 2020.

41Mr. Kotzma has a dreadful youth and adult criminal record dating back to 2008 and carrying on into 2022. It consists of more than a dozen offences as a youth, and more than 30 convictions as an adult. Many of his adult offences are for failing to comply with court orders, but he has multiple convictions for property offences including break and enter, and two for assault. The jail sentences imposed have been relatively short. He has been placed on probation many times, apparently with little positive impact on his behaviour. He told the author of the pre-sentence report that he committed break-ins of businesses to feed his drug habit, and he acknowledged a propensity for violence linked to his alcohol abuse. He also told her that he dodged help at every opportunity.

42Mr. Kotzma was on bail for weapons and property offences when he committed the home invasion.

43Mr. Kotzma’s mother reports that she is of Indigenous ancestry, although she could not provide identifying information. Aboriginal Legal Services was unable to confirm Mr. Kotzma’s Indigenous background. Mr. Kotzma is interested in knowing more about his heritage. He has participated in some Indigenous programs while in custody.

44Mr. Kotzma remained in jail following his arrest on November 11, 2021. He told the author of the pre-sentence report that he experiences depression, for which he receives medication. Almost all of his pre-sentence custody has been spent at Central East Correctional Centre (“CECC”). Institutional records show that as of November 21, 2023, he was locked-down for all or part of a day because of staffing shortages and/or COVID-19 medical protocols, on more than 260 occasions. CECC is notorious in the legal community for its constant lockdowns due to staffing shortages, and so I am confident that Mr. Kotzma continued to experience lockdowns after the date of the lockdown report. He has sometimes been triple-bunked. He described in an affidavit the adverse impact on him of lockdowns and other conditions at CECC. That said, he was a range cleaner for about a year and a half and also the pod cleaner for part of that time, which I infer gave some relief from lockdowns. He completed his high school diploma while in custody, as well as three Life Skills programs.

45Mr. Kotzma speaks to his mother occasionally, has limited contact with his father, and no contact with his siblings. He has a young daughter whom he has never met. Nonetheless, his mother and other family members attended the sentencing hearing to show their support of him.

46The author of the pre-sentence report described Mr. Kotzma as being high risk to reoffend in a violent manner, and recommended that while in custody he have access to intensive rehabilitative programming.

47In a letter read in court, Mr. Kotzma apologized for his involvement in the home invasion and for his offences.

The Circumstances of Mr. Rodgers

48Mr. Rodgers was 25 years old at the time of his offence. He is now 27 years old. He is the youngest of three children. He was raised primarily by his mother, although he had a relationship with his father. The family apparently was not financially well-off.

49Mr. Rodgers was diagnosed at some point with Attention Deficit Hyperactivity Disorder. He did not complete high school. After leaving school, he worked in his father’s property maintenance business, and also in roofing and landscaping.

50Mr. Rodgers has an abysmal youth and adult criminal record dating back to 2013. It includes numerous adult convictions for breaching court orders, two convictions for being unlawfully in a dwelling house, one conviction for assault, one conviction for assault causing bodily harm, and one conviction for carrying a concealed weapon. He was placed on probation numerous times, but in January 2021 received a lengthy reformatory sentence followed by probation.

51He was on probation when he committed the home invasion.

52Defence counsel advised that Mr. Rodgers has substance abuse issues.

53Mr. Rodgers has been in custody since his arrest on November 11, 2021. He has been held at CECC. Institutional records show that as of November 21, 2023, he was locked-down for all or part of a day because of staffing shortages and/or COVID-19 medical protocols, on more than 290 occasions. I am confident that Mr. Rodgers continued to experience lockdowns after the date of the lockdown report. He has sometimes been triple-bunked. In an affidavit, he recounted the adverse impact on him of lockdowns and other conditions at CECC. While in custody Mr. Rodgers completed some credits toward his high school diploma, and one Life Skills program.

54Mr. Rodgers’ mother and other family members remain supportive of him.

55In a letter read in court, Mr. Rodgers apologized for his involvement in the home invasion and for his offence.

The Circumstances of Mr. Mahon-Fernandes

56Mr. Mahon-Fernandes was 28 years old at the time of his offence. He is now 30 years old. He is single and has no children. He has no criminal record.

57Mr. Mahon-Fernandes grew up in an intact, loving family, in which there were no mental health or substance abuse issues. Both of his parents worked outside the home. His maternal grandmother and an aunt helped to care for him. He has an older half-sister, with whom he has a good relationship, although they did not grow up together. His childhood was a happy one. He told the author of the pre-sentence report that he “got everything I ever wanted or needed”.

58Mr. Mahon-Fernandes completed high school, and then went to work. He has held employment in a variety of fields, including construction, landscaping, and as a security guard. The longest he worked for any one company was from 2011 to 2014, when he was employed as a concrete repair technician for a construction company.

59Mr. Mahon-Fernandes has lived with his parents since 2019. Following his arrest on November 22, 2021, he remained in custody at CECC until he was released on bail on March 28, 2022, a total of 127 days. While in custody he was locked-down for all or part of a day because of staffing shortages and/or COVID-19 protocols, on 47 occasions.

60His release conditions included “house arrest” with electronic monitoring. He could not leave his residence unless accompanied by his sureties or for medical reasons. Compliance with his bail conditions has not been an issue. However, because of his house arrest condition, he was unable to work. He relied on his family for financial support. In May 2022, he was declared bankrupt. He has since been discharged from bankruptcy.

61While on bail, he improved his education. He completed an on-line program in Construction Project Management at Humber College, achieving excellent grades and obtaining his certificate in the spring of 2023. In the fall of 2023, he completed an on-line English course. He applied and was accepted to a George Brown College program in Construction Engineering Technology, which was to commence this month. His longer-term goal is to upgrade his marks and obtain a Bachelor of Engineering degree.

62During the past several months, he volunteered on occasion at a food bank.

63Mr. Mahon-Fernandes has an in-writing offer of employment from the construction company where he worked previously. The offer is open until such time as he is available to work.

64Mr. Mahon-Fernandes has no history of mental health issues. He told the author of the pre-sentence report that while on bail, he smoked marijuana daily, because it helped him with feelings of anxiety and to sleep. However, he planned to reduce his marijuana consumption before he began attending school in-person, so that it did not interfere with his educational performance. His parents were aware of his marijuana use. In a letter of support written in November 2023, they reported that their son had quit smoking marijuana altogether.

65Mr. Mahon-Fernandes does not believe that he has a substance abuse problem, or mental health issues, but told the author of the pre-sentence report that he would attend counselling if ordered by the court.

66Mr. Mahon-Fernandes has the support of family members and friends, all of whom are pro-social individuals. They described him to the author of the pre-sentence report, and in letters submitted at the sentencing hearing, as honest, straightforward, empathetic, responsible, and hard-working.

67Mr. Mahon-Fernandes cooperated with the police and gave an inculpatory statement on his arrest. In a letter submitted on the sentencing hearing, he said that he realizes he has no-one but himself to blame for his involvement in the criminal justice system. He expressed that he feels deep remorse for his action and inaction on the night of November 11, 2021. His parents wrote that he has exhibited true remorse for his role in the events. In court, he apologized orally for his offence.

The Positions of the Parties

68Crown and defence counsel submitted joint positions as to sentence with respect to Mr. Kotzma and Mr. Rodgers.

69The joint position with respect to Mr. Kotzma is a global sentence of 11 years and 6 months’ imprisonment, less pre-sentence custody calculated at one and a half to one, taking into account that Mr. Kotzma used 40 actual days of that custody on another matter.

70The joint position with respect to Mr. Rodgers is 8 years and 6 months’ imprisonment, less pre-sentence custody calculated at one and a half to one.

71Crown and defence counsel also agreed that the following ancillary orders should be made: DNA, s. 109, s. 743.21 non-communication in respect of named persons, and forfeiture of specified items. The Victim Fine Surcharge is to be waived.

72Crown counsel Mr. Midwood and Ms. Yorgiadis emphasized that this is a “worst case scenario” of home invasion for the purpose of robbery, in that one occupant of the house was killed and another was injured. While none of the offenders I am sentencing knew that a firearm would be involved, this was a planned and coordinated invasion of a residence, carried out in the middle of the night by intruders who were masked and gloved. Even as Mr. Fullerton lay dying, Mr. Kotzma and Mr. Rodgers went ahead with the plan to loot the house. Mr. Kotzma dragged Ms. Murdoch to the basement where he chased and assaulted her. Both Mr. Kotzma and Mr. Rodgers have lengthy previous criminal records. Crown counsel submitted that the joint positions take into account the mitigating factors of the guilty pleas and the harsh conditions of pre-sentence custody experienced by both men.

73On behalf of Mr. Kotzma, Ms. Giordano acknowledged that his jail sentence must be longer than that imposed on Mr. Rodgers. She confirmed that this is a fully joint submission with respect to Mr. Kotzma, but emphasized that he did not intend that Mr. Fullerton would be killed. She suggested that Mr. Kotzma’s Indigenous background and his remorse factor into the appropriateness of the joint submission.

74On behalf of Mr. Rodgers, Ms. Wyszomierska confirmed that this is a fully joint submission with respect to him. She emphasized that his offence is one of manslaughter, not murder. She submitted that the joint position takes into account the mitigating factors, including Mr. Rodgers’ remorse.

75Crown and defence counsel do not agree on the appropriate sentence for Mr. Mahon-Fernandes. On his behalf, Ms. Klein submitted that he should receive a conditional sentence of imprisonment of two years less a day. She emphasized that he was not a directing mind of the home invasion, but merely provided transportation. There are significant mitigating factors, including that he cooperated with the police on his arrest, he pleaded guilty and is very remorseful, he is youthful, he has no criminal record, he spent some time in pre-sentence custody under harsh conditions before he was released on bail, while on bail and despite its restrictive conditions he pursued his education and volunteered at a food bank, and he has family support as well as a job to go to. She asked that he receive 8 months’ credit against the sentence for his time on a restrictive house arrest bail.

76Crown counsel seek a sentence of 4 years’ imprisonment, less 6 months credit for the time on a restrictive bail plus 127 days of pre-sentence custody calculated at one and a half to one as 191 days, leaving a sentence to serve of just under 3 years in jail. The ancillary orders sought for the other offenders are requested, except that the Victim Fine Surcharge should be ordered. In their submissions, Mr. Midwood and Ms. Yorgiadis recognized the mitigating factors, but emphasized that Mr. Mahon-Fernandes made a free choice to participate in the home invasion robbery. His moral culpability is high. After the events he took steps to avoid detection. He wiped down his car, fled on foot when the police arrived, changed his phone number, and did not go home. While he has done well on bail, he lacks insight into his offending behaviour.

The Principles of Sentencing

77The Criminal Code (“the Code”) sets out a number of principles of sentencing that govern a judge’s determination of the appropriate sentence in any given case.

78Section 718 provides that the fundamental purpose of sentencing is to protect society and to contribute to respect for the law and the maintenance of a just, peaceful and safe society. This is achieved by the imposition of just sanctions that have one or more of the following objectives: the denunciation of unlawful conduct and the harm done to victims or the community, deterrence both general and specific, the separation of the offender from society where necessary, rehabilitation, reparation for harm done to victims or the community, and promotion of a sense of responsibility in offenders and acknowledgment of the harm done to victims or the community.

79Section 718.1 of the Code provides that a sentence must be proportionate to the gravity of the offence and the degree of responsibility of the offender. The Supreme Court of Canada has indicated that proportionality is the chief organizing principle in determining a fit sentence. See, R. v. Parranto, 2021 SCC 46, at para. 10.

80Section 718.2 provides that a sentence should be increased or decreased to account for any aggravating and mitigating circumstances. It sets out various aggravating factors. It also requires that a sentence be similar to those imposed on similar offenders in similar circumstances, that where consecutive sentences are imposed the combined sentence not be unduly long or harsh, that an offender should not be deprived of liberty if less restrictive sanctions may be appropriate in the circumstances, and that all available sanctions other than imprisonment that are reasonable in the circumstances and consistent with the harm done to victims or the community be considered for all offenders, with particular attention to the circumstances of Aboriginal offenders.

81In every case, the determination of a fit sentence is a fact-specific exercise, not a purely mathematical calculation. As the Supreme Court of Canada put it in R. v. Ferguson, 2008 SCC 6, at paragraph 15, “The appropriateness of a sentence is a function of the purpose and principles of sentencing set out in ss. 718 to 718.2 of the Criminal Code as applied to the facts that led to the conviction”. The gravity of the offence, the offender’s degree of responsibility, the specific circumstances of the case, and the circumstances of the offender all must be taken into account by the sentencing judge. See, R. v. Lacasse, 2015 SCC 64, at paras. 58 and 143.

Offences Involving Home Invasion

82The context for the offences in this case is that Mr. Kotzma, Mr. Rodgers, and Mr. X planned to forcibly enter the home of Mr. Fullerton and Ms. Murdoch around 3:00 a.m., a time when it was reasonable to expect its residents would be at home and asleep, to commit robbery. Mr. Mahon-Fernandes agreed to assist the perpetration of the robbery, by driving the group to and from the residence.

83“Home invasion” is not a term that is defined in the Criminal Code. The Court of Appeal for Ontario pointed out in R. v. J.S. (2006), 2006 ONCA 22101, 213 O.A.C. 274, at para. 32, that courts generally apply it where the main features of a case include breaking into a home for the purpose of committing theft or robbery, knowing that or being reckless whether the home is occupied, and using or threatening to use violence. The presence of weapons is sometimes a factor, as is the confinement in some way of occupants of the home.

84In 2006, the Court of Appeal for Ontario pronounced home invasion to be a “serious and increasingly prevalent” crime: see, R. v. Wright (2006), 2006 ONCA 40975, 83 O.R. (3d) 427, at para. 13. The Court said, at paragraph 14, that, “The obligation of the Court is to give proper recognition to the sanctity of the home, to protect all citizens against such intrusions, and to thereby preserve the public’s confidence in the administration of justice.” Consequently, a lengthy penitentiary sentence is appropriate for a home invasion offence.

85Because of the myriad of circumstances that can constitute a home invasion offence, the Court in Wright identified a broad sentencing range, in the sense of a guideline, of four or five years in jail at the low end, to 11 to 13 years’ imprisonment at the high end, and even higher where kidnapping, serious injuries, sexual assault, or death is involved. That range was reiterated by the Court of Appeal more recently, in R. v. Hopwood, 2020 ONCA 608.

86The Court in Wright indicated, at paragraph 24, that the paramount objectives of sentencing in home invasion cases are the protection of the public, general deterrence, and denunciation, although the prospects of rehabilitation must also be considered.

87In this case, Mr. Kotzma and Mr. Rodgers are being sentenced for manslaughter because Mr. Fullerton was shot and killed in the course of the home invasion, albeit neither one of them was the shooter. The maximum sentence for manslaughter is life imprisonment.

Analysis: Mr. Kotzma

88The constellation of significant aggravating factors to be considered in determining the appropriate sentence for Mr. Kotzma includes the following:

1. The invasion and robbery of Mr. Fullerton’s home was planned and calculated. The residence was specifically targeted, as evidenced by the dozens of photographs of Mr. Fullerton and the blueprints of both levels of his home that were on Mr. Kotzma’s cell phone.
2. Mr. Kotzma’s motive for participating in the robbery of people who he did not know was greed.
3. The forced entry of the home occurred in the middle of the night, when any residents would likely be in bed asleep and so at their most vulnerable.
4. This was a group endeavour, which heightened its menacing nature.
5. Mr. Kotzma and the other intruders entered the home wearing gloves, with their faces covered. This not only increased the intimidating effect, it enhanced the prospect that the perpetrators would not be identified and apprehended.
6. While Mr. Kotzma was not armed with a gun and did not shoot Mr. Fullerton, he participated in physically pushing Mr. Fullerton when the latter confronted the group.
7. The violence that Mr. Kotzma inflicted on Ms. Murdoch was gratuitous, and went well beyond simply subduing her.
8. Even though it was obvious that Mr. Fullerton was gravely wounded, Mr. Kotzma did nothing to assist him or summon help for him. Instead, he and his cohorts remained in the house for some time, pillaging it for valuables. Among the items the group took were the victims’ cell phones, thereby preventing Mr. Morton and Ms. Murdoch from calling for help.
9. It was Mr. Kotzma who directed Mr. Mahon-Fernandes to drive the group to the Highland Avenue address. There Mr. Kotzma participated in divvying up the spoils of the robbery.
10. Mr. Kotzma made efforts to avoid detection by the police. He discarded some of his clothing at Highland Avenue. He instructed Ms. Perry to give him a false alibi.
11. Mr. Kotzma has a long and appalling criminal record that includes previous crimes of violence, and break and enter. He failed to take advantage of the opportunities offered by probation supervision to change his life course, admittedly dodging help at every opportunity.
12. When he committed these offences, he was on a release order for weapons and property crimes. Such flagrant disrespect for a court order breeds public cynicism about our bail system.
13. The author of the pre-sentence report evaluated Mr. Kotzma as a high risk to reoffend in a violent manner.
14. The impact of the events on Ms. Murdoch, her family and friends, and the family and friends of Mr. Fullerton is profound and enduring.

89In mitigation, I consider:

1. Mr. Kotzma pleaded guilty, which is a sign of remorse and acceptance of responsibility for his offences. It resulted in a saving of court time that otherwise would have been required for a trial.
2. Mr. Kotzma expressed remorse for his offences.
3. He is the product of a dysfunctional childhood not of his making. No doubt this influenced his character and behavioural development.
4. He was subjected to difficult conditions of pre-sentence custody, most notably frequent lockdowns due to staffing shortages and/or COVID-19 protocols.
5. He completed his high school credits while in custody, and took on the roles of range and pod cleaner.

90I have considered the information that Mr. Kotzma is of Indigenous ancestry, and that he is interested in exploring his heritage. While I take judicial notice of the systemic and background factors affecting Indigenous people in Canadian society, I do not have information that enables me to consider whether they have impacted Mr. Kotzma’s own life experiences, and if so whether they illuminate his level of moral blameworthiness or disclose the sentencing objectives that should be prioritized in his case: see, R. v. F.H.L., 2018 ONCA 83, at paras. 38 to 47.

91The conclusion of the author of the pre-sentence report is of very real concern. It suggests that without intensive rehabilitative programming in custody and a commitment to it on Mr. Kotzma’s part, his reformation is unlikely. This raises important red flags for correctional authorities wherever Mr. Kotzma is housed, and also for those who monitor him on release.

92It is obvious that Mr. Kotzma’s offences were extremely serious. His moral blameworthiness or degree of responsibility is very high. The primary goals of sentencing in his case must be denunciation, deterrence both general and specific, and the protection of the public.

93In R. v. Anthony-Cook, 2016 SCC 43, at paragraph 42, the Supreme Court of Canada held that trial judges should reject joint submissions as to sentence only where the proposed sentence “would be viewed by reasonable and informed persons as a breakdown in the proper functioning of the justice system.” I have no such concern about the sentence jointly suggested for Mr. Kotzma.

94In all the circumstances of the offences and of Mr. Kotzma including the aggravating and mitigating factors, and having regard to the objectives of sentencing, I accept the joint submission as to his sentence.

Analysis: Mr. Rodgers

95The aggravating factors that apply to Mr. Rodgers echo, to some extent, those I have articulated with respect to Mr. Kotzma. They include:

1. The invasion and robbery of the Fullerton/Murdoch home was planned and calculated. The residence was specifically targeted.
2. Mr. Rodgers’ motive for participating in the robbery of people whom he did not know was greed.
3. The forced entry of the home occurred in the middle of the night, when any residents would likely be in bed asleep and so at their most vulnerable.
4. This was a group endeavour, which heightened its menacing nature.
5. Mr. Rodgers and the other intruders entered the home wearing gloves with their faces covered. This not only increased the intimidating effect, it enhanced the prospect that the perpetrators would not be identified and apprehended.
6. While Mr. Rodgers was not armed with a gun and did not shoot Mr. Fullerton, he participated in physically pushing Mr. Fullerton when the latter confronted the group.
7. Even though it was obvious that Mr. Fullerton was gravely wounded, Mr. Rodgers did nothing to assist him or to summon help for him. Instead, he and his cohorts remained in the house for some time and pillaged it for valuables. Among the items the group took were the victims’ cell phones, thereby preventing Mr. Morton and Ms. Murdoch from calling for help.
8. Mr. Rodgers participated in divvying up the spoils of the robbery at the Highland Avenue address.
9. He attempted to avoid detection by the police, discarding some of his clothing at Highland Avenue.
10. Mr. Rodgers has a lengthy criminal record that includes previous crimes of violence, and being unlawfully in a dwelling house. Clearly he failed to use multiple periods of probation support to turn his life around.
11. When he committed these offences, he was on probation for multiple offences after serving several months in custody.
12. The impact of the events on Ms. Murdoch, her family and friends, and the family and friends of Mr. Fullerton is profound and enduring.

96In mitigation, I consider:

1. Mr. Rodgers pleaded guilty, which is a sign of remorse and acceptance of responsibility for his offences. It resulted in a saving of court time that otherwise would have been needed for a trial.
2. Mr. Rodgers expressed remorse for his offence.
3. He was subjected to difficult conditions of pre-sentence custody, most notably frequent lockdowns due to staffing shortages and/or COVID-19 protocols.
4. He took some rehabilitative steps while in custody, and has some measure of family support.

97Mr. Rodgers’ circumstances for sentencing purposes are different from those of Mr. Kotzma in two important respects. He did not participate in the assault of Ms. Murdoch, and there is no report before me that suggests he is a risk to reoffend violently. Nonetheless, he chose to participate in this home invasion knowing the risk that someone would be harmed, for an entirely selfish reason. And indeed, harm did result, of the gravest kind.

98Mr. Rodgers’ offence is extremely serious, and his moral blameworthiness or degree of responsibility is very high. The primary goals of sentencing in his case are denunciation, deterrence both general and specific, and the protection of the public.

99I am satisfied that the sentence jointly suggested for Mr. Rodgers is appropriate given his circumstances and the circumstances of his offence, including the aggravating and mitigating factors, and having regard to the objectives of sentencing. I accept the joint submission as to his sentence.

Analysis: Mr. Mahon-Fernandes

100Mr. Mahon-Fernandes pleaded guilty to robbery, not manslaughter. Robbery is, however, a crime of violence. It too is punishable by a maximum sentence of life imprisonment.

101I recognize that Mr. Mahon-Fernandes is in a different position than Mr. Kotzma and Mr. Rodgers. He was not involved in planning the home invasion, nor did he go into the house.

102Nonetheless, there are multiple aggravating factors applicable to Mr. Mahon-Fernandes. They include:

1. Mr. Mahon-Fernandes agreed to participate in what he knew was a planned home invasion robbery. He was aware that a residence would be entered in the middle of the night, a time when it was reasonable to expect that occupants would be at home in bed. He knew that violence was a probable consequence of executing the plan.
2. His motive was financial gain.
3. While he did not go into the home, he played an integral role in the robbery. He drove his cohorts to the house, waited while they carried out the robbery, made his car available for them to load with stolen property, and then drove them and the bounty away from the scene. His participation made it possible for the home invasion robbery to occur.
4. Mr. Mahon-Fernandes’ involvement was not fleeting. In particular, he spent about 25 minutes circling the block in his vehicle, stopping near the house at intervals. He had plenty of time to reflect on what he was doing, and to abandon his involvement by simply driving away. Instead, he chose to carry on, even after he believed that something had gone wrong inside the house.
5. At Highland Avenue, Mr. Mahon-Fernandes helped the group unload the stolen items from his car. He did not leave once that was done. Instead, he joined the other men inside the residence while the property was sorted and divided.
6. Mr. Mahon-Fernandes tried to destroy evidence. He wiped down the interior and exterior of his car, including the door handles. He discarded some of his clothing. He also took steps to avoid apprehension by the police, changing his phone number and staying with friends.
7. This home invasion robbery had permanent impact. The life of one man was lost. The lives of many other persons were damaged in ways that cannot easily be repaired, if at all.

103There are important mitigating factors that I must weigh in considering the appropriate sentence for Mr. Mahon-Fernandes. He pleaded guilty, which is a sign of his remorse and acceptance of responsibility for his offence. His guilty plea saved court time that could be re-allocated to other cases. Additionally, he expressed remorse in a letter submitted at the sentencing hearing, and in his remarks in the courtroom.

104Once arrested, Mr. Mahon-Fernandes cooperated with the police by providing an inculpatory statement.

105Unlike Mr. Kotzma and Mr. Rodgers, Mr. Mahon-Fernandes is a first offender, who has never before been in legal trouble. Involvement in criminal activity, especially of this magnitude, is very much out of character for him. Further, he has done exceptionally well while on bail, using the time to complete an educational program that advances his goal of studying engineering at university. He has done some volunteer work in the community. He has abided by strict conditions of release, without any suggestion of breach.

106Mr. Mahon-Fernandes has the support of pro-social family members and close friends. This will further his insight into his conduct, and reinforce for him the importance of continuing on his rehabilitative path.

107Because Mr. Mahon-Fernandes is a first offender, I must consider the objectives of individual deterrence and rehabilitation along with denunciation, general deterrence, and protection of the public, in fashioning the appropriate sentence.

108It is not disputed that Mr. Mahon-Fernandes must receive a sentence of imprisonment. The issue is its length, and in particular whether it should be less than two years and served in the community as a conditional sentence of imprisonment.

109In support of her submission that Mr. Mahon-Fernandes should receive a reformatory length sentence served in the community, Ms. Klein relied on R. v. Borde (2003), 2003 ONCA 4187, 63 O.R. (3d) 417 (C.A.). She urged me to sentence Mr. Mahon-Fernandes on the basis that he is a youthful first offender for whom the shortest possible sentence will achieve the relevant sentencing objectives.

110The reality, however, is that unlike the offender in Borde who was an 18 year old teenager, Mr. Mahon-Fernandes was 28 years of age when he committed the offence. He was not youthful.

111In R. v. Brown, 2015 ONCA 361, the Court of Appeal said, at paragraph 5, “[W]hile individual deterrence and rehabilitation are the primary objectives in sentencing a first offender, the importance and weight of other factors increase with the seriousness of the crime.” This approach reflects the principle of proportionality, that a sentence must be proportionate to the gravity of the offence and the degree of responsibility of the offender.

112Here, the gravity of the offence of robbery in which Mr. Mahon-Fernandes participated is pronounced. A group of men forcibly entered a home in the middle of the night, intending to steal from its occupants. The consequences of that activity were dire. One resident of the home was shot almost immediately, and left to die. His fiancée was assaulted and left psychologically traumatized.

113Mr. Mahon-Fernandes’ degree of responsibility, or moral blameworthiness, is less than that of Mr. Kotzma and Mr. Rodgers. Nonetheless it is high. Motivated by greed, he chose to play a role in the planned robbery of someone else’s home. He knew that violence was a probable consequence of executing the plan, yet he participated nonetheless. He had time and opportunity to end his involvement, but he did not do so. Even when he came to believe that something had gone wrong (as indeed it had), he continued to play his role, allowing his car to be loaded with stolen property, and waiting until the group was ready to leave the house he knew they had forced their way into, before whisking them away to a location of their choosing.

114A penitentiary sentence is necessary in this case, even though Mr. Mahon-Fernandes is a first offender for whom criminal activity is out of character. A reformatory sentence, whether served in jail or in the community as a conditional sentence, would reflect neither the gravity of the offence nor Mr. Mahon-Fernandes’ moral blameworthiness. It would over-emphasize rehabilitation and individual deterrence, and give insufficient weight to denunciation and general deterrence.

115The sentence of four years’ imprisonment suggested by Crown counsel falls at the very lowest end of the range, or guideline, suggested in Wright. A range or guideline is just that. It is not a straightjacket on judicial discretion. Because of Mr. Mahon-Fernandes’ rehabilitative efforts while on bail, I have decided that a sentence slightly lower than the guideline is appropriate. A sentence of three years and ten months in jail will be imposed, less credit for pre-trial custody calculated at one and a half to one as six months and 11 days plus Downes credit of six months and 19 days, for a total credit of 13 months. This leaves a sentence to serve of 2 years and 9 months in jail.

Conclusion

116Mr. Kotzma, please stand.

117On count 1 for the included offence of manslaughter I sentence you to 11 years and 6 months in jail, less pre-sentence custody at one and a half to one of 38 months, leaving a sentence to serve of 8 years and 4 months in jail.

118On count 2 for the offence of assault causing bodily harm, I sentence you to 3 years in jail concurrent.

119On each count there is a DNA order, a s. 109(3) order for life, a s. 743.21 non-communication order, and a forfeiture order. The Victim Fine Surcharge is waived given your personal circumstances.

120You may be seated.

121Mr. Rodgers, please stand.

122On count 1 for the included offence of manslaughter I sentence you to 8 years and 6 months in jail, less pre-sentence custody at one and a half to one of 40 months, leaving a sentence to serve of 5 years and 2 months in jail.

123There is a DNA order, a s. 109(2)(a) order for 10 years and a s. 109(2)(b) order for life, a s. 743.21 non-communication order, and a forfeiture order. The Victim Fine Surcharge is waived given your personal circumstances.

124You may be seated.

125Mr. Mahon-Fernandes, please stand.

126On count 4 for robbery, I sentence you to 3 years and 10 months in jail, less 13 months for pre-sentence custody at one and a half to one plus Downes credit, leaving a sentence to serve of 2 years and 9 months in jail.

127There is a DNA order, a s. 109(2)(a) order for 10 years and a s. 109(2)(b) order for life, a s. 743.21 non-communication order, and a forfeiture order. The Victim Fine Surcharge is waived given your personal circumstances.

128You may be seated.

Justice M.K. Fuerst

Released: January 15, 2024

NOTE: As noted in court, on the record, this written decision is to be considered the official version of the Reasons for Sentence and takes precedence over the oral Reasons read into the record in the event of any discrepancies between the oral and written versions.