



COURT OF APPEAL FOR ONTARIO

CITATION: R. v. Fourtounes, 2017 ONCA 898

DATE: 20171122

DOCKET: C62216 & C63838

Rouleau, Pepall and Miller JJ.A.

BETWEEN

Her Majesty the Queen

Respondent

and

Jory Fourtounes and Clifford Lewis

Appellants

James Carlisle, for the appellant Jory Fourtounes

Harry J. Doan, for the appellant Clifford Lewis

David Finley, for the respondent

Heard and released orally: November 16, 2017

On appeal from the sentence imposed on November 10, 2015
    by Justice James W. Sloan of the Superior Court of Justice, sitting with a
    jury.

REASONS FOR DECISION

[1]

This is a sentence appeal by two co-accused. The appellants were charged
    with various offences including breaking and entering into a dwelling house,
    using a firearm in the commission of that offence, breaches of weapons
    prohibitions and drug offences. Before trial commenced, they pled guilty to the
    break and enter charge. Following a jury trial, they were convicted of the
    firearm charges and the drug offences. After the conviction, the appellants
    accepted the jury verdict and invited the trial judge to find them guilty of
    the numerous breaches of court orders.

[2]

In his reasons for sentence, the sentencing judge characterized the
    appellants actions as a home invasion, which he found to be an aggravating
    factor. Mr. Fourtounes received a global sentence of nine years minus credit
    for pre-sentence custody. Mr. Lewis received a global sentence of seven years
    minus credit for pre-sentence custody.

[3]

The appellants principal submission on appeal is that the sentencing
    judge erred in characterizing the offence as a home invasion. They argue that
    this led the sentencing judge to impose a sentence that was too high and did
    not respect the totality principle. In the appellants submission, the
    sentencing judge ought to have found that the appellants were careful to ensure
    that no one would be home at the time the offence was committed.

[4]

In our view, the sentencing judge was entitled to find that the
    appellants were reckless as to whether anyone was home at the time of the
    break-in. The sentencing judge found that the appellants came to the home with
    a gun and zip-tie handcuffs. These findings are consistent with the evidence
    and are entitled to significant deference. Having found that the appellants
    brought the gun and handcuffs to the house, the sentencing judge reasonably
    inferred that they were prepared to use them, if given the opportunity.

[5]

In our view, whether or not this case constitutes a home invasion, the
    appellants sentences should not be disturbed. This was, at a minimum, an
    aggravated case of residential break-in. The sentencing judge reasonably found
    that the appellants created a risk of harm to the occupants of the house and
    other residents of the neighbourhood. The appellants knew that Mr. Santizos
    house was not abandoned. They carried out the robbery while conscious of the
    risk that the residents may be present or might return while they were in the
    home. That risk in fact materialized. Mr. Santizo returned home while the
    appellants were still present. Mr. Santizo was confronted by one of the
    appellants. Although it is unclear whether either of the accused pointed the
    gun directly at Mr. Santizo, the jurys finding of guilt on the charge of using
    a firearm in the commission of an indictable offence makes it clear that the
    gun was used to intimidate Mr. Santizo.

[6]

Additional aggravating factors were present. Those include the fact that
    the co-accused had significant criminal records and had breached court orders
    in committing the offence. The offences had been premeditated, took place in
    broad daylight and were committed in a residential area within a four kilometre
    radius of four schools. Stiff penitentiary sentences were appropriate. They
    were fit and did not offend the totality principle.

[7]

With one exception, we also see no merit in the other grounds listed in
    the appellants facta. These were not pressed in oral submissions. The one
    exception is the credit to be given to Mr. Fourtounes for pre-trial
    custody. The Crown concedes that additional credit for pre-trial custody of 227
    days should be awarded. We agree.

[8]

In summary, leave to appeal is granted, Mr. Lewis appeal is dismissed
    and the appeal of Mr. Fourtounes is allowed but only to vary the sentence,
    reducing it by 227 days.

Paul Rouleau J.A.

S.E. Pepall J.A.

B.W. Miller J.A.


