R. v. Brown

R. v. Brown Collection Decisions of the Court of Appeal Date 2015-05-22 Neutral citation 2015 ONCA 361 Docket numbers C58718 Judges Juriansz, Russell G.; Rouleau, Paul S.; Hourigan, C. William Subject Criminal Decision Content COURT OF APPEAL FOR ONTARIO CITATION: R. v. Brown, 2015 ONCA 361 DATE: 20150522 DOCKET: C58718 Juriansz, Rouleau and Hourigan JJ.A. BETWEEN Her Majesty the Queen Respondent and Jeffrey Brown Appellant Frank Addario, for the appellant John Patton, for the respondent Heard: May 4, 2015 On appeal from the sentence imposed on December 2, 2011 by Justice A. Donald MacKenzie of the Superior Court of Justice, sitting with a jury. By the Court: [1] The parties dispute the sentencing principles that govern youthful first-time offenders. The appellant, as an 18-year-old first offender, committed a home invasion marked by horrific violence. He was convicted of robbery, use of a restricted weapon during a rough, forcible confinement, uttering a death threat aggravated assault and unauthorized possession of a firearm, and sentenced to a total of nine years imprisonment. [2] In arriving at the sentence, the sentencing judge held that “the concept of general deterrence and denunciation is paramount. It is not exclusive but it is paramount, it is the primary consideration.” Counsel for the appellant submits this is an error of law. He asserts that specific deterrence and rehabilitation are always the paramount sentencing objectives in the case of a youthful first-time offender. In advancing the argument, he relies on what Rosenberg J.A. said in R. v. Priest, [1996] O.J. No. 3369 at para 17: The primary objectives in sentencing a first offender are individual deterrence and rehabilitation. Except for very serious offenses and offenses involving violence, this court has held that these objectives are not only paramount but best achieved by either a suspended sentence and probation or a very short term of imprisonment followed by a term of probation. [3] In Priest, the sentencing judge imposed a one-year term of imprisonment on the young first-time offender after he pleaded guilty to breaking into a convenience store and stealing goods worth $2,700. The judge considered that general deterrence was the paramount consideration because of the prevalence of breaking and entering in the community. On appeal, the focus of the court in Priest was on the sentencing of youthful first-time offenders in cases in which dispositions other than imprisonment could and should be considered. [4] By contrast, this case involves the sentencing of a youthful first-time offender for an extremely serious offense for which a lengthy penitentiary term is warranted. The issue is what factors should govern the determination of the length of imprisonment imposed. The more apt authority, in our view, is R. v. Thurairajah, 2008 ONCA 91, which concerned the sentencing of a youthful first offender for a particularly serious sexual assault. Doherty J.A. writing for the court said: 41 Generally speaking, sentences imposed on young first offenders will stress individual deterrence, where necessary, and rehabilitation. General deterrence will play little, if any, role in fashioning the appropriate sentence in this category of offender in most cases: R. v. Ijam (2007), 87 O.R. (3d) 81 at 93-94 (C.A.). Serious crimes of violence, particularly sexual assaults, do provide an exception to the general rule described above. While all of the principles of sentences remain important, including rehabilitation, for serious crimes involving significant personal violence, the objectives of denunciation and general deterrence gain prominence: R. v. Ijam, supra; R. v. Wells (2000), 141 C.C.C. (3d) 368 at para. 26 (S.C.C.). 42 The emphasis to be placed on denunciation and to a lesser extent general deterrence, grows with the seriousness of the particular circumstances surrounding the sexual assault for which an accused, even a young accused, is being sentenced. [5] In our view, while 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 respects the fundamental principle of sentencing stated in s. 718.2 of the Criminal Code: “a sentence must be proportionate to the gravity of the offence and the degree of responsibility of the offender". [6] With this in mind we turn to the crime for which the appellant was sentenced. The appellant, together with two others, invaded a home looking for handguns. The vulnerable female resident was struck in the head multiple times with a pistol. After she had fallen, she was kicked repeatedly in the back of the head and back. Her wrists were bound with an exercise bungee. She was struck multiple times in the face and body with a golf driver. When the golf club broke she continued to be “clobbered” with it on her face, head and hands. The assailants, who had brought a gas can with them, poured gasoline on her and threatened to ignite it. They beat her further before fleeing with long guns. The resident was left with serious and permanent physical and psychological injuries. In describing the crime the sentencing judge said the “mind boggles” at the “horrendous brutality of this aggravated assault". [7] The sentencing judge’s description of the crime is apt. General deterrence and denunciation had to be weighed heavily in sentencing this serious violent crime. However, it was an error to say these factors had become “the primary consideration”. The primary objectives in sentencing the youthful first time offender remained individual deterrence and rehabilitation. In balancing the factors, the sentencing judge still had to impose the shortest term of imprisonment that was proportionate to the crime and the responsibility of the offender, given his young age. [8] It is clear the sentencing judge, while considering general deterrence and denunciation to be the primary consideration, did attach significant weight to the appellant’s young age. He imposed a sentence of seven years for the convictions robbery, robbery with a firearm, and aggravated assault. For the convictions of uttering threats and forcible confinement he imposed sentences of three years to be served concurrently with the seven-year sentences. For the unlawful possession of a firearm he sentenced the appellant to two years to be served consecutively to the seven-year sentences, resulting in a total sentence of nine years. [9] The range for home invasions is four to five years at the low end, and up to 11 to 13 years at the high end: see R. v. Wright [2006] O.J. No. 4870, R. v. Mann, [2010] O.J. No. 1924. The seven year sentences for the robbery with a firearm and aggravated assault were entirely fit and shorter sentence for these offences would not reflect their gravity. The two-year sentence for unlawful possession of a firearm contrary to s. 91(1) of the Criminal Code was also fit considering how the gun was used, when considered on its own. However, the effect of the two year consecutive sentence resulted in a total sentence of nine years. Section 91(1), unlike s. 85 of the Code, does not require a consecutive sentence. [10] We would vary the sentence by making the sentence for unlawful possession of a firearm concurrent to the other sentences thereby reducing the appellant’s total sentence from nine years to seven years to properly reflect that individual deterrence and rehabilitation remained the paramount factors on his sentencing. [11] The appeal is allowed and the sentence varied as indicated. Released: May 22, 2015 (RGJ) “R.G. Juriansz J.A.” “Paul Rouleau J.A.” “C.W. Hourigan J.A.”