



THIS IS AN APPEAL UNDER THE

YOUTH CRIMINAL JUSTICE ACT

AND IS SUBJECT TO:

110(1)          Subject to this
    section, no person shall publish the name of a young person, or any other
    information related to a young person, if it would identify the young person as
    a young person dealt with under this Act.

(2) Subsection (1) does not apply

(a) in a case where the
    information relates to a young person who has received an adult sentence;

(b) in a case where the
    information relates to a young person who has received a youth sentence for a
    violent offence and the youth justice court has ordered a lifting of the
    publication ban under subsection 75(2); and

(c) in a case where the
    publication of the information is made in the course of the administration of justice,
    if it is not the purpose of the publication to make the information known in
    the community.

(3) A young person referred to in
    subsection (1) may, after he or she attains the age of eighteen years, publish
    or cause to be published information that would identify him or her as having
    been dealt with under this Act or the
Young Offenders Act
, chapter Y-1
    of the Revised Statutes of Canada, 1985, provided that he or she is not in
    custody pursuant to either Act at the time of the publication.

111(1)          Subject to this
    section, no person shall publish the name of a child or young person, or any
    other information related to a child or a young person, if it would identify
    the child or young person as having been a victim of, or as having appeared as
    a witness in connection with, an offence committed or alleged to have been
    committed by a young person.

138(1)          Every person who
    contravenes subsection 110(1) (identity of offender not to be published),
    111(1) (identity of victim or witness not to be published), 118(1) (no access
    to records unless authorized) or 128(3) (disposal of R.C.M.P. records) or
    section 129 (no subsequent disclosure) of this Act, or subsection 38(1)
    (identity not to be published), (1.12) (no subsequent disclosure), (1.14) (no
    subsequent disclosure by school) or (1.15) (information to be kept separate),
    45(2) (destruction of records) or 46(1) (prohibition against disclosure) of the
Young Offenders Act
, chapter Y-1 of the Revised Statutes of Canada,
    1985,

(a) is guilty of an indictable
    offence and liable to imprisonment for a term not exceeding two years; or

(b) is guilty of an offence
    punishable on summary conviction.




COURT OF APPEAL FOR ONTARIO

CITATION: R. v. S.K., 2021 ONCA 619

DATE: 20210916

DOCKET: C66374

Pardu, Paciocco and Nordheimer
    JJ
.A.

BETWEEN

Her Majesty the Queen

Respondent

and

S.K.

Appellant

Laura Remigio, for the appellant

Justin Reid, for the respondent

Heard: September 1, 2021 by
    video conference

On appeal
    from the sentence imposed on March 24, 2017 by Justice Lucia Favret of the Ontario
    Court of Justice.

REASONS FOR DECISION

[1]

The appellant seeks leave to appeal from sentences imposed for offences
    related to four home invasion robberies. The offences were committed over a
    period of approximately two months when the appellant was 17 and 18 years old.
    He was sentenced to a total term of imprisonment of nine years broken down as
    follows:

·

Adult sentences

·

Three counts of robbery, and one count of forcible entry,
    contrary to s. 73 of the
Criminal Code
, R.S.C. 1985, c. C-46


seven
    years concurrent on each count

·

Possession of a loaded firearm without a serial number- two years
    consecutive to the robbery sentences

·

Possession of a firearm without a serial number  two years
    concurrent

·

Possession of cocaine  30 days concurrent

·

Youth sentence

·

Robbery  one year concurrent to adult sentence

[2]

At the sentencing proceedings the Crown sought a global sentence of 12
    years for the adult offences; the defence suggested six to seven years would be
    adequate. For the youth sentence the Crown sought one year concurrent and the
    defence advocated for a sentence of three to six months, also concurrent.

Nature of the offences

[3]

The home invasions took place between November 2014 and January 2015.

[4]

The first offence was committed when the appellant was 17 years old in
    November 2014. He and one other person entered L.s apartment and the appellant
    caged her with his arms and legs around her on a couch. He asked her where
    she kept her money. After they obtained some money and her cell phone, they
    left the apartment. L. was not injured and no other violence was used.

[5]

On January 3, 2015, four males, including the appellant, forced their
    way into Z.s home. One of them, not the appellant, hit Z. on the head and
    kicked her several times. Another, again not the appellant, had an imitation
    firearm in his possession. While the culprits searched the apartment, Z.
    escaped and shouted for help. The four males left. They stole $200-$300, an
    iPhone, and the keys to her apartment. Surveillance video recorded the men
    leaving the residence, one of whom was the appellant.

[6]

Three weeks later, H.W. woke to find a man (not the appellant) armed
    with a knife in her bedroom. He demanded money and held the knife to her cheek,
    cut her on the face, and placed a comforter over her head. The victim could
    feel a large amount of blood flowing from the cut on her cheek and cried out.
    The man ran out of her room. The males who entered her apartment were not
    initially masked but donned masks after entering the apartment. Surveillance
    recorded that the appellant was one of the males who entered her home.

[7]

The next day, L. was expecting a visitor. Lobby camera footage showed
    the appellant using the buzzer system to get into the building, with three
    other men. When L. heard a knock at her door, she opened it and four men forced
    their way in. She was hit on the head, had a bag placed over her head and was beaten
    and dragged to the bathroom. Another male entered the bathroom brandishing a
    firearm and asked where her money was. One of the males sexually assaulted her.
    There was no evidence identifying the appellant as the one who assaulted her or
    used the firearm. The men left after gathering two cell phones, purses, jewelry,
    and money.

[8]

On March 2, 2015, about five weeks after the last robbery, a search
    warrant executed at the appellants home uncovered a loaded handgun, with an
    obliterated serial number and 8.05 grams of cocaine.

Plea

[9]

The appellant pleaded guilty to the offences on October 6, 2016. An
    agreed statement of facts outlined the circumstances of each of the offences.

Analysis

[10]

The
    sentencing judge made errors in principle which had an impact on the sentences
    imposed, and accordingly it falls to this court to determine a fit sentence:
    see
R v. Lacasse
, 2015 SCC 64, [2015] 3 S.C.R.
    1089, at paras. 41-44;
R v. Friesen
, 2020 SCC
    9, 444 D.L.R. (4
th
) 1, at paras. 25-27.

[11]

The
    sentencing judge did not differentiate in the principles to be applied when
    sentencing a youth under the
Youth Criminal Justice Act
(
YCJA
), S.C. 2002, c. 1 as opposed to an adult. A youth
    sentence must be the least restrictive sentence possible, while still holding
    the young person accountable:
YCJA
, ss. 38(2)
    (d), (e). General deterrence is not a relevant factor when sentencing a young
    person. The sentencing judge was under the mistaken impression that there was a
    joint submission for a one-year custodial sentence for this offence. She
    indicated that she would deliver reasons on the youth sentence at a later date,
    but those reasons were never delivered.

[12]

The
    appellant was a youthful first offender. When dealing with the adult offences,
    the sentencing judge referred to rulings from this court indicating that
    ordinarily for youthful offenders, as for first offenders, the objectives of
    individual deterrence and rehabilitation are paramount. She then went onto say
    that that principle did not apply because of the aggravating feature of the
    home invasion. That was a misreading of this courts authorities: see e.g.
R. v. Batisse
, 2009 ONCA 114, 93 O.R. (3d) 643,
at para.
32;
R. v. Priest
(1996),
    1996 CanLII 1381 (ON CA), 110 C.C.C. (3d) 289 (Ont. C.A.)
.
Where
    a term of incarceration must be imposed because of the nature of the offence,
    for a young first offender, the term should be as short as possible and
    tailored to the individual circumstances of the accused.
R.
    v. Priest
at p. 12. In
R. v. Kwakye
, 2015 ONCA 108, [2015] O.J. No. 707 (QL)
this court noted that rehabilitation remains an important factor, when
    sentencing a young first offender on any offence, including manslaughter.
R. v. Jacko
,
    2010 ONCA 452, 101 O.R. (3d) 1

provides another example:
perpetrators of a serious home invasion had their sentences reduced on appeal
    to two years less a day and a conditional sentence in order to better reflect
    their rehabilitative potential.

[13]

This
    is particularly important when sentencing a youthful first offender to a first
    penitentiary sentence. This court noted in
R. v. Borde
(2003),
    2003 CanLII 4187 (ON CA), 63 O.R. (3d) 417 (C.A.), at para. 36:

Aside from the
    gravity of the appellant's crimes, the overwhelming factor is his youth. In my
    view, the trial judge erred in principle in focusing almost exclusively on the
    objectives of denunciation and general deterrence, given the appellant's age
    and that this was his first adult prison sentence and his first penitentiary
    sentence. The length of a first penitentiary sentence for a youthful offender should
    rarely be determined solely by the objectives of denunciation and general
    deterrence. Where, as here, the offender has not previously been to
    penitentiary or served a long adult sentence, the courts ought to proceed on
    the basis that the shortest possible sentence will achieve the relevant
    objectives. The trial judge's repeated references to the need to send a message
    and his statement that the sentence was meant to deter others who resort to
    guns make it clear that general deterrence and to a less extent denunciation
    determined the length of the sentence. In my view, this error led the trial
    judge to impose an excessive sentence for the aggravated assault.


[14]

The
    appellant had the support of his family and community. The sentencing judge
    failed to give adequate weight to the appellants rehabilitative potential.

[15]

Finally,
    the sentencing judge erred when she found that it was an aggravating factor
    that the appellant deliberately used his baby-faced appearance to dupe the
    victims into opening their doors. This was not an argument advanced by the
    Crown, and the evidence did not support this conclusion. In effect, the
    sentencing judge used the appellants youth as an aggravating factor.

[16]

These
    offences were in the nature of a spree, all committed before the appellant was
    subject to the sanction of imprisonment, when he was a youthful first offender.
    Fresh evidence bears out the rehabilitative potential the appellant has. He is
    now on parole and working. He pleaded guilty at an early opportunity and was
    remorseful for his actions.

[17]

We
    would not interfere with the one-year concurrent youth sentence. The effect of
    that sentence is now spent. Pursuant to s. 82 of the
YCJA,
the appellant has been deemed never to have been found guilty of the youth
    offence, as that sentence was completed by March 24, 2018. Variation of that
    sentence would have no practical effect.

[18]

We
    agree the offences were serious and merit a stiff sentence. Tailoring that
    sentence to the circumstances of this appellant, we are of the view that a
    global sentence of seven years, before credit for pre-sentence custody, would
    be adequate. That is still a very substantial jail sentence for a youthful
    first offender going to the penitentiary.

[19]

We
    would vary the adult sentences imposed by the trial judge as follows:

1.

Robbery Count 3, the appellant was a party to a robbery committed while
    a participant was armed with a restricted firearm. This attracts a minimum
    sentence of five years. We impose that sentence less credit for presentence
    custody of 605 days for 403 days actual presentence custody for a net sentence
    of 1220 days.

2.

Robbery Counts 6, and 11, four years incarceration concurrent to the
    sentence on Count 3 on each count.

3.

Count 7, forcible entry contrary to s. 73 of the
Criminal
    Code
. The Crown concedes that the seven years incarceration must
    be reduced, and we substitute a one-year sentence concurrent to the sentence on
    Count 3, as the maximum available sentence is not more than two years.

4.

Count 22 possession of a loaded firearm contrary to s. 95(1) of the
Criminal Code
, we maintain the two-year consecutive
    sentence consecutive to Count  3.

5.

Count 25 possession of firearm without a serial number, we maintain the
    two years concurrent to the sentence on Count 22.

6.

Count 26, possession of cocaine, we maintain the 30 days concurrent to Counts
    22 and 23.

[20]

The
    victim fine surcharge is set aside, in light of
R. v.
    Boudreault
, 2018 SCC 58, [2018] S.C.R. 599.

[21]

The
    other ancillary orders made by the sentencing judge are affirmed.

G. Pardu J.A.

David Paciocco J.A.

I.V.B. Nordheimer J.A.


