



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 judges 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 appellants 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 appellants
    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.


