



COURT OF APPEAL FOR ONTARIO

CITATION: R. v. Burke, 2017 ONCA 405

DATE: 20170519

DOCKET: C58383

MacPherson, Blair and Epstein JJ.A.

BETWEEN

Her Majesty the Queen

Respondent

and

Horatio Burke

Appellant

Mark Halfyard and Colleen McKeown, for the appellant

Holly Loubert, for the respondent

Heard: May 16, 2017

On appeal from the sentence imposed on May 28, 2013 by
    Justice Michael Block of the Ontario Court of Justice.

REASONS FOR DECISION

[1]

The appellant appeals against the
    ten-year sentence imposed following his conviction on his plea of guilty to
    robbery, wearing a disguise and aggravated assault (times two). The charges
    arose out of the robbery of a jewellery store.

[2]

On September 18, 2012, at about
    1:30 pm, the appellant and Kuwayne Feron, disguised with masks, entered the
    small convenience jewellery store. The appellant and Mr. Feron jumped over the
    counter and tried to gain control of the proprietors, Mr. and Mrs. Mouradian.

[3]

The assailants encountered resistance
    from the Mouradians. The appellant pushed Mr. Mouradian down. Mr. Feron handed
    the appellant a hammer. The appellant struck Mr. Mouradian on the head with the
    hammer and continued to strike him until Mr. Mouradian gave up. The appellant
    then turned his attention to Mrs. Mouradian, who was engaged in a struggle with
    Mr. Feron. The appellant used the hammer to strike Mrs. Mouradian on her head,
    arms and legs. He continued to hit Mrs. Mouradian even after she stopped moving.
    In total, the two victims sustained 32 hammer strikes.

[4]

The Mouradians were both injured
    in the attack. Mrs. Mouradian suffered fractures in her head and was left with headaches
    and vision problems. Mr. Mouradian sustained wounds that left his face permanently
    scarred. Both victims have been impacted psychologically.

[5]

The appellant and Mr. Feron left
    the store with about $30,000 worth of jewellery.

[6]

The appellant fled to another
    province. Discovering that the robbery had been caught on video and that the
    police had identified him as one of the perpetrators, the appellant surrendered
    and accepted responsibility for his criminal conduct. A year later Mr. Feron
    was located. He pleaded guilty and was sentenced to three years in prison.

[7]

The appellant was 23 years old at
    the time of the robbery. As a youth and an adult, the appellant has been found
    guilty of 44 offences  many for violence and weapons offences. At the time of
    his arrest, the appellant was bound by two active probation orders  a three-year
    order for assault with a weapon on his ex-girlfriend and an 18-month order for
    possession of a scheduled substance for the purpose of trafficking.

[8]

After addressing the specific harm
    suffered by the victims, the sentencing judge noted that the residue of this
    protracted attack impacts [the victims] on their ability to earn a living and
    conduct their work in a way that does not continually put them in a state of
    fear.

[9]

The pre-sentence report contains
    an extensive description of the appellants unfortunate childhood. It describes
    how his father was never around, how he lived with his mother only briefly
    given the fact she was incarcerated for a good part of the time while the
    appellant was growing up and how his paternal grandparents, in whose custody he
    remained for a period of time, would beat him with belts and shovels.

[10]

The defence argued in favour of a
    sentence of six to eight years. The Crowns position was that, in the
    circumstances of this case, a sentence of 13 to 15 years was called for.

[11]

The sentencing judge concluded
    that a figure of 10 years seems to be the one that addressed the gravity of
    the crime and the very troubling record that follows [that appellant] to the
    courtroom on this date.

[12]

The appellant argues that the
    sentencing judge failed to consider his surrender and guilty plea, imposed a
    sentence disproportionate to the sentence imposed on Mr. Feron and that the
    sentence is otherwise unfit. He urges this court to set aside the sentence and
    substitute one of six to eight years.

[13]

We do not accept these arguments.

[14]

First, the sentencing judge was well-aware
    of the surrender and guilty plea and that they should be taken into account as
    mitigating circumstances. He made this clear to counsel in the course of
    submissions as to sentence. Furthermore, in his reasons for sentence, the
    sentencing judge referred to these mitigating circumstances in the context of
    the credit to be given for pre-sentence custody.

[15]

As to the argument concerning the
    disparity between the sentence the appellant received and that imposed on Mr.
    Feron, we see two important differences in the circumstances of the two
    offenders and their participation in the offence. First, as previously noted,
    the appellant had a lengthy criminal record and was bound by two separate
    probation orders at the time of the robbery. In stark comparison, Mr. Ferons
    criminal record consisted of one assault conviction in the U.S. Second, it was the
    appellant, not Mr. Feron, who wielded the hammer and inflicted grievous and gratuitous
    violence on the victims.

[16]

The parity principle does not
    require that co-accused be subject to the same sentence or even that they be
    treated similarly. Rather, disparate sentences for disparate offenders do not
    violate the parity principle as long as they are warranted. Here, the difference
    between the two sentences was warranted
.
R. v. Courtney
,
2012 ONCA 478, 294 O.A.C. 346, at
    paras. 4-7.

[17]

We now turn to the fitness of the
    overall sentence.

[18]

This was a cowardly, vicious
    attack on two defenceless victims, an attack that resulted in serious and
    permanent injuries. Taking all of the relevant factors into account, including
    the mitigating circumstances, and considering the range of sentences imposed by
    this court in cases such as this where the offender has a lengthy, serious and
    uninterrupted criminal record with minimal rehabilitative potential and where
    the crime has had a lasting impact on the lives of particularly vulnerable
    people, we are of the view that this sentence was justified.

[19]

Leave to appeal sentence is
    granted. The appeal is dismissed.

J.C. MacPherson J.A.

R.A. Blair J.A.

Gloria Epstein J.A.


