QUEEN’S BENCH FOR SASKATCHEWAN Citation: 2014 SKQB 60 Date: 2014 02 28 Docket: Q.B.C. 27 of 2012 Judicial Centre: Regina BETWEEN: HER MAJESTY THE QUEEN and CALVIN GERALD KLEMENZ and THOMAS RANDALL MATYCHUK Counsel: Ryan Snyder for the Crown Carson Demmons for Calvin Klemenz Bruce Campbell for Thomas Matychuk SENTENCING DECISION DAWSON J. February 28, 2014 [1] Calvin Gerald Klemenz and Thomas Randall Matychuk were each found guilty, by jury, of breaking and entering the home of F.J. and committing therein the indictable offence of aggravated sexual assault, contrary to s. 348(1)(b) of the Criminal Code, R.S.C. 1985, c. C-46. It is now my obligation, as the trial judge, to sentence Mr. Klemenz and Mr. Matychuk for this offence. [2] have prepared this decision in relation to both offenders, but sentencing is an individual exercise. will sentence each individual offender with regard to the principles of sentencing, the relevant factors and the considerations and situation of each individual offender. [3] In jury trial, the jury does not identify the facts that it found to support the conviction. As such, it is my obligation, as the sentencing judge, to find the facts for the purposes of sentencing. The sentencing judge is bound by the express and implied factual implications of the jury’s verdict. The sentencing judge must not accept as fact any evidence inconsistent with verdict rejected by the jury. As such, must not accept the evidence of Calvin Klemenz that he was not the perpetrator of this crime. Likewise, must not accept the evidence of Thomas Matychuk that he was not the perpetrator of this crime. Having said that, the sentencing judge is required to make only those factual determinations necessary for deciding the appropriate sentence in the case. The Supreme Court of Canada in R. v. Ferguson, 2008 SCC (CanLII), [2008] S.C.R. 96, stated that where any ambiguity on the facts exists, the sentencing judge must consider the evidence and make her own findings of fact, consistent with the evidence and the jury’s findings. This principle was confirmed by the Saskatchewan Court of Appeal in R. v. Dueck, 2011 SKCA 45 (CanLII), 371 Sask. R. 134. [4] In the circumstances of this trial, both Calvin Klemenz and Thomas Matychuk were convicted of the offence as charged as principal and/or as party to the offence, that is, as person who aided in the commission of the offence. The jury verdict established that both Calvin Klemenz and Thomas Matychuk broke and entered F.J.’s home and participated as principal or party in the aggravated assault on F.J. PRINCIPLES OF SENTENCING [5] Section 718 of the Criminal Code sets out the purpose and principles of sentencing. The Criminal Code states that the fundamental purpose of sentencing is to contribute to respect for the law and the maintenance of just, peaceful and safe society, by imposing just sanctions. [6] Section 718 also sets out the key objectives of sentencing, which include: denouncing unlawful conduct, which affirms community values concerning the magnitude of the crime and the maintaining of the morale of law abiding citizens (R. v. Arcand, 2010 ABCA 363 (CanLII), 499 A.R. at para. 275); deterring the offender and other persons from committing offences; where it is necessary, to separate the offender from society; to assist in rehabilitating the offender; to providing reparations for the harm done to the victim and the community; and to promote sense of responsibility in the offender and acknowledgment of the harm done to the victim and to the community. [7] Section 718.1 of the Criminal Code states that it is fundamental principle of sentencing that sentence must be proportionate to the gravity of the offence and the degree of responsibility of the offender. In R. v. Hamilton, (2004) 2004 CanLII 5549 (ON CA), 72 O.R. (3d) 1, 241 D.L.R. (4th) 490 (Ont. C.A.), Justice Doherty stated that the gravity of the offence refers to the seriousness of the offence, in generic sense, as reflected by the potential penalty imposed by Parliament, as well as any specific features of the commission of the crime which may tend to increase or decrease the harm or risk of harm to the community occasioned by the offence. Justice Doherty articulated that the degree of responsibility of the offender refers to the offender’s culpability, as reflected in the essential substantive elements of the offence, especially the fault component, and any specific aspects of the offender’s conduct or background that tend to increase or decrease the offender’s personal responsibility in the crime. Justice Doherty noted that in some circumstances one side of the proportionality inquiry will figure more prominently in the disposition than the other. For example, where there is young first offender being sentenced for serious property offences, the sentence imposed would tend to emphasize the features which mitigate the offender’s personal culpability, rather than those which highlight the gravity of the crimes. However, where young offender commits crime involving serious personal injury to the victim, the gravity of the proportionality inquiry will be given prominence in determining the ultimate disposition. [8] court is also to be guided by the principles that are set out in s. 718.2 of the Criminal Code. Several apply here. Firstly, s. 718.2(a) states that sentence should be increased or reduced to account for any relevant aggravating or mitigating circumstance relating to the offence or the offender. [9] Secondly, s. 718.2(b) of the Criminal Code states that sentence should be similar to sentences imposed on similar offenders for similar offences committed in similar circumstances. This is known as the principle of parity. This implies that there must not be an unjustifiable disparity in sentences between sentences imposed for similar offences and similar offenders. (R. v. L.M., 2008 SCC 31 (CanLII), [2008] S.C.R. 163; R. v. Pham, 2013 SCC 15 (CanLII), [2013] S.C.R. 739 and R. v. Laliberte, 2000 SKCA 27 (CanLII), 189 Sask. R. 190. [10] Thirdly, s. 718.2(d) of the Criminal Code states that the least restrictive sanction should be identified and that available sanctions other than imprisonment should be considered. [11] It is with these principles in mind that undertake sentencing. CIRCUMSTANCES OF THE OFFENCE [12] In the early morning hours of March 15, 2012, Calvin Klemenz, Thomas Matychuk, and another individual drove in Calvin Klemenz’s van to the business known as Ramco Paving. They went to the Ramco Paving property with plan to break into the property and steal items from the property. Ramco Paving is located in north Regina, Saskatchewan. [13] The driver of the van stopped the van at the security gate of Ramco Paving. Thomas Matychuk got out of the van and tried to open the security gate. The driver got out of the van and assisted Mr. Matychuk to open the gate. They cut the lock on the gate. The driver then drove the van into the Ramco property at 2:15 a.m. on March 15, 2012. [14] At the same time, in the early morning hours of March 15, 2012, F.J. was asleep in his home, camper trailer, which was located inside the locked compound on Ramco Paving property. F.J. was awoken when he heard banging noises. F.J. looked at his watch and thought it was around 2:30 a.m. He turned on the light in his camper trailer and started to get dressed. At that moment, his camper door opened and an individual unknown to F.J. stuck his head in. This person was wearing heavy black hoodie. This person told F.J. to get down on the floor. F.J. asked the person what he wanted, but the person did not respond. This person pulled his head back out of the doorway. This person had masculine voice and F.J. described him as man. [15] The person who had stuck his head in the doorway, almost immediately after pulling his head back out of the door, entered F.J.’s home. As the perpetrator entered, he swung blue handled mallet hammer. This person told F.J. to get down on the floor. F.J. did as he was told. F.J. got down on his hands and knees. This person began stomping with his feet on F.J.’s back. While this person was stomping on F.J.’s back, two more people came into the camper. The person kept stomping on F.J.’s back demanding that F.J. tell him where F.J.’s money and debit card were located. One of the other persons who had entered F.J.’s home joined this first person in beating F.J. While the two people beat F.J. by stomping and hitting him, the third person took F.J.’s money and wallet and began stealing F.J.’s electronics. Calvin Klemenz and Thomas Matychuk were two of the three people in F.J.’s home committing these acts. [16] The person who was not directly hitting F.J. took F.J.’s money and wallet. This same person removed F.J.’s laptop, his cell phone and his stereo from his home. After all of the electronics had been taken out, the assailants demanded that F.J. give them his PIN card number. The assailants continued to beat F.J. until F.J. gave them PIN number. They continued to stomp on the back of his head, to stomp on his neck, and to stomp on his back. After taking F.J.’s stereo, electronics, cell phone and wallet, the three people left F.J.’s trailer. F.J. was left laying on the floor of his home. F.J. got up and locked the door. [17] Video surveillance shows that at 2:37 a.m., Calvin Klemenz’s van left the Ramco property. The van then returned and re-entered the Ramco property at 2:39 a.m. [18] Before F.J. was able to get dressed, Thomas Matychuk and Calvin Klemenz returned. They banged on his door. One of them told him to unlock the door and get down on the floor. F.J. unlocked the door and laid back down on the floor as he was told to do. Only few minutes had passed between the time Calvin Klemenz and Thomas Matychuk left F.J.’s home and the time they returned. Thomas Matychuk and Calvin Klemenz came back into F.J.’s home. They began to yell at F.J. They accused him of giving them the wrong PIN number. Once again, these perpetrators stomped on F.J. and beat him. They continued beating on him and demanding his PIN number. The assailants then tied F.J.’s hands behind his back with black charging cord from one of F.J.’s electronics. Then they began to sexually assault him. The assailants sodomized F.J. with pens and frying pan handle. They shoved the pens and frying pan handle into F.J.’s rectum. One of the assailants stated that they should kill F.J., burn his home and get rid of the evidence. As result of these assaults, F.J. gave these individuals another PIN number. The assailants then left F.J.’s home. On the way out, they smashed F.J.’s television with the hammer and smashed the corner of cabinet. They left F.J. on the floor of his camper in this beaten state. Calvin Klemenz and Thomas Matychuk were two of the people in F.J.’s home committing these acts. It is not necessary for me to determine if the third person entered F.J.’s home this second time. [19] The van left the Ramco property for the last time at 2:47 a.m., about 37 minutes after it first entered the property. [20] Shortly after leaving the Ramco property for the last time, Calvin Klemenz and Thomas Matychuk drove in Calvin Klemenz’s van to 7-11 store in north Regina. At 2:56 a.m., less than 10 minutes after leaving the Ramco property, Calvin Klemenz and Thomas Matychuk entered the 7-11 store together. Calvin Klemenz went to the counter in the 7-11 and bought something. Thomas Matychuk went to the back of the 7-11 store and attempted to utilize F.J.’s debit card in the Automated Teller Machine. Thomas Matychuk inserted F.J.’s debit card into the ATM machine and entered in F.J.’s PIN number. Calvin Klemenz walked to the area of the ATM Machine and waited for Thomas Matychuk to finish. Thomas Matychuk was unable to withdraw money from F.J.’s account because there were insufficient funds in F.J.’s account. Immediately thereafter, Calvin Klemenz and Thomas Matychuk left the 7-11 store together. [21] F.J.’s amp was recovered from the home of Calvin Klemenz. The blue handled mallet hammer used to beat F.J. was recovered from the shed at the home of Calvin Klemenz. Thomas Matychuk sold F.J.’s electronics and Calvin Klemenz and Thomas Matychuk split the proceeds. [22] F.J. was badly injured. There was blood on the floor of F.J.’s kitchen from F.J.’s injuries. F.J. had no cell phone to call for help, but in addition, he was afraid to call because of the threats of the offenders. After Calvin Klemenz and Thomas Matychuk left Ramco, F.J. went into the Ramco building in an attempt to get comfortable. F.J. lost considerable amount of blood from this assault. F.J. was found by his co-workers around 7:00 a.m. He was taken to hospital shortly thereafter. [23] F.J. suffered numerous, extensive and serious injuries as result of the beating and sexual assault. F.J. had extensive bruising to his back and neck from the assailants stomping repeatedly on his neck and back with their feet. He had two black eyes and bruising to his forehead, from his head repeatedly hitting the floor as the assailants stomped on his neck and head. He had facial fracture. F.J. suffered bruising and cuts to his elbow from being struck with the hammer. [24] F.J. also suffered rectal injury from the handle of the frying pan being forced up his rectum. The force of the assault caused perforation into his abdomen. He suffered extreme abdominal pain and tenderness. He had bleeding from the rectum with clots and bright red blood. [25] After F.J.’s admission to the hospital, he was taken to surgery on an urgent basis. During surgery, it was discovered that he had rectal perforation on the interior portion of the rectum, heading up into the space between the rectum and bladder, and it was discovered that this also perforated into the abdomen. F.J. had large tear in the rectum which went quite deep in the pelvis. As result of the extent of the injury, the doctors had to perform an ostomy. F.J. was kept in hospital until March 23, 2012. [26] F.J. had to tolerate the ostomy until December, 2012. Thereafter, in March, 2013,- year after the assault, he had reconstructive surgery to reverse the ostomy. F.J. still has scars, is not as strong as he was before, and has lost lot of his muscle strength. THE OFFENDER CALVIN GERALD KLEMENZ [27] Calvin Gerald Klemenz was born October 10, 1974. He is 39 years of age. Mr. Klemenz has four children and two grandchildren. He is currently working towards obtaining his high school GED. Completing his education is one of his life’s plans. Counsel for Mr. Klemenz advises Mr. Klemenz is recovering drug addict. [28] Counsel for Mr. Klemenz advises that Mr. Klemenz was paroled in 2011 and prior to this offence, was successful on parole. Counsel advises that as result of the present offence, he has lost his home and his spousal relationship. He was employed at the time of this offence, but has lost that employment as well. [29] Calvin Klemenz has been on remand since April 11, 2012 on this charge. He has undertaken two bible study courses and completed them while on remand. He has had no institutional infractions while on remand. [30] Mr. Klemenz also has some strong family and community support. Members of his family attended court to show their support for him. [31] Counsel for Mr. Klemenz filed letters of support written by persons to show their support for Mr. Klemenz. [32] Mr. Klemenz worked for about 10 years at the Regina Beach Esso and his previous manager, from that employment, wrote letter of support. He described Mr. Klemenz as polite and courteous to customers. He indicated that Mr. Klemenz got along well with other employees. He wrote that Mr. Klemenz always did what was requested of him. His previous manager described Mr. Klemenz as nice young man. [33] Another letter written for support for Calvin Klemenz was from family friend and next door neighbour who has known Calvin Klemenz since 1978. She described shock and surprise that Calvin Klemenz would be involved in such an incident, as she stated that was not the nature of the young man that she knew. Janet Gordon, Calvin Klemenz’s older sister, also wrote letter of support. Ms. Gordon describes that Calvin Klemenz is giving, strong and caring person who has fallen into trouble because of drugs. Ms. Gordon does not believe that Calvin Klemenz is responsible for the offence. Andrew Gordon, the brother-in-law of Calvin Klemenz, also wrote letter of support. He believed that in the last three years Calvin Klemenz was attempting to turn his life around. He said Calvin Klemenz was involved in common law family situation and started very decent job at the Co-op Upgrader. He knew Calvin Klemenz to be non-violent man. Sheila Hart, Calvin Klemenz’s other sister, also wrote letter of support. She described Calvin Klemenz as caring and generous brother. She described Calvin as trusting person, but bit of follower. She described that he had succumbed to drug addiction and started to steal, but that he had never done anyone harm in the process. Ms. Hart says Calvin Klemenz is not violent person. Calvin Klemenz’s cousin also wrote letter of support. She describes Calvin as an honest, reliable, dependable and trustworthy person. She, too, asserts that Calvin is not violent person and is supporting Calvin in his claim that he is innocent of the crime. Calvin Klemenz’s Record [34] Calvin Klemenz has lengthy criminal record dating back to 1993. He has, by my count, been convicted of 40 previous offences. Most of Calvin Klemenz’s record relates to property offences and some driving offences, as well as numerous offences of failing to attend court and failing to comply with recognizance and with court orders. His only previous record for violence was conviction in January of 2008 of one count of armed robbery and one count of robbery. He was sentenced to 40 months concurrent on each of those charges. Counsel advises that most of Mr. Klemenz’s record relates to his issues of drug addiction and that Calvin Klemenz is working towards sobriety. [35] The full extent of Calvin Klemenz’s record is as follows: 1993-12-08 Theft under $1000 Sec 334(B) CC $100 I-D 21 days probation mos restitution 1995-09-27 Dangerous operation of motor vehicle Sec 249(1)(A) CC $750 I-D mos (1) Poss of property obtained by crime Sec 355(A) CC (2) Poss of property obtained by crime Sec 355(B) CC (1-2) $750 I-D 60 days on each chg (1) Theft under $5000 Sec 334(B) CC (2) Fail to appear Sec 145(5) CC (3) Fraud Sec 380(1) CC (2 chgs) (1-2) Susp sent probation 18 mos on each chg (3) Susp sent probation 18 mos (1) Public mischief Sec 140(1)(C) CC (2) Fail to comply with probation order Sec 733.1(1) CC (1) $600 I-D 13 days (2) $300 I-D days (1) Fail to comply with probation order Sec 733.1(1) CC (2) Fail to comply with probation order Sec 733.1(1) CC (3) Fail to attend court Sec 145(2)(B) CC (4) Fail to attend court Sec 145(2)(A) CC (1) Susp sent probation yr (2) $800 I-D 16 days (3-4) $50 I-D day on each (1) Driving while ability impaired Sec 253(A) CC (2) Driving with more than 80 mgs of alcohol in blood Sec 253(B) CC (3) Fail to comply with probation order Sec 733.1(1) CC (4 chgs) (4) Fail to appear Sec 145(5) CC (1) $1000 I-D 20 days probation yr proh dri yr (2) $600 I-D 12 days proh dri yr (3-4) Susp sent probation yr on each chg 2002-12-09 Poss of property obtained by crime under $5000 Sec 355(B) CC Susp sent probation mos conc to sent serving (1) Uttering forged document Sec 368(1) CC (2) Driving while disqualified Sec 259(4) CC (3) Fail to appear Sec 145(5) CC (4) Fail to attend court Sec 145(2)(A) CC (1-2) mos conditional sentence order (3-4) $100 I-D day on each chg (1) Breach of conditional sentence orders Sec 742.6(9) CC (for entries dated 2004-07-19) (2) Poss of scheduled substance Sec 4(1) CDS Act (2chgs) (1) Orders terminated (2) days conc (1) Break Enter commit Sec 348(1)(B) CC (2 chgs) (2) Break Enter with intent Sec 348(1)(A) CC (2 chgs) (3) Poss of property obtained by crime over $5000 Sec 355(A) CC (4) Fail to comply with recognizance Sec 145(3) CC (5) Fail to attend court Sec 145(2)(A) CC (2 chgs) (6) Driving while disqualified Sec 259(4) CC (1-2) Time served (18 mos) mandatory prohibition order Sec 109 CC (3-5) Time served (1 mo) on each chg conc (6) Time served (1 mo) conc proh dri yr (1) Armed robbery Sec 344(B) CC (2) Robbery Sec 344(B) CC (1-2) 40 mos on each chg conc (credit for mos pre-sentencing custody) mandatory prohibition order Sec 109 CC THOMAS RANDALL MATYCHUK [36] Thomas Matychuk was born April 10, 1978. He is 35 years of age. He was born in Regina and has three siblings. His parents separated in 1986 and initially, he lived with his mother. After that, he began to live with his father, but was taken into foster care on several occasions. Through his youth he lived mostly with his father. He is close to his one sister, and has some relationship with his other two siblings, although he indicates that he was not raised with them. [37] At the time of this offence, he was involved in common law relationship with Agnes Coldwell. He was involved with her for eight years. [38] Thomas Matychuk indicated during the trial that he was drug addict. At the time of the offence, he said he was off drugs but drinking heavily and still doing some drugs. He describes himself as an addict and an alcoholic. He is attempting recovery. [39] Thomas Matychuk has been on remand since July 17, 2012 on this charge. He has his grade 12, but has been attempting to take extra math classes. While on remand, he has taken the bible studies course and has met with the Chaplin every week. He has had no institutional infractions while on remand. [40] Thomas Matychuk has an extensive criminal record dating back to 1992 when he was youth. He has, by my count, 67 previous convictions. Most of his convictions relate to thefts and break and enters to commit theft. He also does have conviction for robbery with violence as youth. In 2005 he was parole violator and was re-committed. He has numerous convictions for obstruction of peace officer, fail to attend court and fail to comply with recognizance and court orders. By Thomas Matychuk’s admission, he indicates that he has been sentenced to total of nine years incarceration but has served approximately three years in jail because of parole. Thomas Matychuk’s Record [41] Thomas Matychuk’s record is as follows: 1992-05-20 Youth Court Poss of Property obtained by crime of $1000-Sec 355(a) CC 20 hrs community service work 1992-12-10 Youth Court BE Commit Sec 348(1)(B) CC chgs Probation yr on each chg 1993-06-21 Youth Court (1) Robbery with Violence- Sec 343(B) CC (2) Fail to comply with disposition Sec 26 YO Act (3) Fail to Attend Court Sec 145(2)(A) CC (4) Poss of Property obtained by crime under $1000 Sec 355(B) CC (5) Fail to comply with recognizance Sec 145(3) CC (6) BE Commit Sec 348(1)(B) CC (7) Obstruct Peace Officer Sec 129(A) CC (1-7) Probation 12 mos 1993-09-07 Youth Court (1) Theft under $1000 Sec 334(B) CC (2) Fail to comply with disposition Sec 26 YO Act (3) Fail to comply with recognizance Sec 145(3) CC (4) Fail to appear Sec 145(5) CC (1-4) Probation 12 mos 1993-11-24 Youth Court Mischief under $1000 Sec 430(4) CC 21 days time served 1993-11-25 Youth Court (1) Obstruction Sec 129(A) CC (2) Theft under $1000- Sec 334(B) CC (3) Fail to appear Sec 145(5) CC (4) Fail to appear Sec 145(4) CC (1-3) 21 days time served 1994-04-06 Youth Court (1) Theft under $1000 Sec 334(B) CC (2) Obstruct Peace Officer Sec 129(A) CC (3) Fail to comply with disposition Sec 26 YO Act (1) yr open custody (2-4) yr open custody 1994-04-16 Youth Court (1) Theft under $1000 Sec 334(B) CC (2) Obstruct Peace Officer Sec 129(A) CC (3) Fail to comply with disposition Sec 26 YO Act (1-3) yr open custody 1994-04-20 Youth Court Unlawfully at large Sec 145(1)(B) CC 30 days secure custody consec to sent serving 1994-06-20 Youth Court (1) Escape lawful custody Sec 145(1)(A) CC (2 chgs) (2) BE Commit Sec 348(1)(B) CC (3) Theft over $1000 Sec 334(A) CC (2 chgs) (4) Poss of property obtained by crime over $1000 Sec 355(A) CC (5) Theft under $1000 Sec 334(B) CC (6) Obstruction Sec 129(A) CC (1) mos secure custody consec to sent serving probation 18 mos on each chg (2-5) mos open custody probation 18 mos on each chg conc conc (6) mo secure custody consec probation 18 mos 1994 12 -07 Youth Court Escape lawful custody Sec 145(1)(A) CC mos secure custody consec to sent serving 1995 -10-17 Youth Court (1) Poss of property obtained by crime Sec 355(B) CC (2) Fail to comply with disposition Sec 26 YO Act (3) Escape lawful custody Sec 145(1)(A) CC (1-2) mo secure custody on each chg consec consec to sent serving (3) mos secure custody consec 1995 11-09 Youth Court (1) Att Obstruct Justice Sec 139 CC (2) Fail to comply with disposition Sec 26 YO Act (1) mos consec to sent serving probation 18 mos prohibited from poss any firearms, ammunition or explosive for 10 yrs (2) mo secure custody consec 1996-09-18 (1) BE Commit Sec 348(1)(B) CC (2) Escape lawful custody Sec 145(1)(A) CC (3) Unlawfully at large Sec 145(1)(B) CC (4) Fail to attend court Sec 145(2)(A) CC (5) Unlawfully at large Sec 145(1)(B) CC (1) 90 days consec to sent serving (2-4) 15 days on each chg consec consec (5) 30 days consec 1997-12-03 (1) BE Theft Sec 348(1)(B) CC (2) with intent Sec 348(1)(A) CC (3) BE Commit Sec 348(1)(B) CC (4) Fail to comply with probation order Sec 733.1(1)CC (5) Uttering forged document Sec 368(1) CC (6) Fail to attend court Sec 145(2)(A) CC (7) Dangerous operation of motor vehicle Sec 249(1)(A) CC (8) Fail to comply with recognizance Sec 145(3) CC (1-3) yr probation 18 mos on each chg (4-8) mo on each chg conc conc probation 18 mos on each chg 2000-02-02 (1) BE Theft Sec 348(1)(B) CC (2) BE Commit Mischief Sec 348(1)(B) CC (1-2) yrs on each chg conc 2000-04-18 Fail to attend court Sec 145(2)(A) CC 14 days conc with sent serving 2002 12-03 Flight while pursued by peace officer Sec 249.1(1) CC 30 days intermittent probation mos (1) Break Enter Theft Sec 348(1)(B) CC (2) Break Enter with intent Sec 348(1)(A) CC (3) Uttering threats Sec 264.1(1)(A) CC (4) Fail to comply with undertaking Sec 145(3) CC (5) Poss of property obtained by crime under $5000 Sec 355(B) CC (1-2) yr on each chg consec probation yrs (3-5) mos on each chg conc conc probation yrs 2005-07-06 Parole Violation Recommitted (1) Theft under $5000 Sec 334(B) CC (2) Fail to comply with recognizance Sec 145(3) CC (3) Fail to comply with probation order Sec 733.1(1) CC (1-3) mos conditional sentence order on each chg (1) Break Enter Theft Sec 348(1)(B) CC (2) Mischief over $5000 Sec 430(3) CC (3) Use of credit card Sec 342(1)(C) CC (4) Break Enter with intent Sec 348(1)(A) CC (1-4) 14 mos conditional sentence order 2008-03-06 Sentence varied on appeal to 10 mos (1) Theft over $5000 Sec 334(A) CC (2) Theft under $5000 Sec 334(B) CC (2 chgs) (3) Fail to attend court Sec 145(2)(A) CC (4) Break Enter Theft Sec 348(1)(B) CC (5) Driving while ability impaired Sec 253(10(A) CC (6) Fail to stop at scene of accident Sec 242(1) CC (7) Fail to comply with recognizance Sec 145(3) CC (1-4) yrs on each chg conc (5) mos conc proh dri 12 mos (6-7) mos on each chg conc conc EFFECT ON THE VICTIM [42] The following Criminal Code section is relevant: (1) For the purpose of determining the sentence to be imposed on an offender or whether the offender should be discharged pursuant to section 730 in respect of any offence, the court shall consider any statement that may have been prepared in accordance with subsection (2) of victim of the offence describing the harm done to, or loss suffered by, the victim arising from the commission of the offence. [43] F.J. filed victim impact statement. F.J. indicated that this assault has affected even the smallest aspects of his life, such as eating and sleeping. F. J. says that because of the crack in his skull, he is limited from eating certain foods. [44] F.J. indicates that he lives with fear and he asks, “Am safe? Where can go to feel comfortable?” He says he always thinks, “Are they going to come back?” [45] F.J. describes that because of his internal injuries, he had to have surgery which has left him very handicapped. F.J. is unable to work. He says he cannot pick up his nieces and nephews. He has to sleep certain way because of the damage to his back. [46] F.J. indicated that this crime has had financial impact on him as well. He said his bills are piling up because he has been unable to work. As well, because all of his credit cards and wallet were stolen, along with all of his electronics, stereo equipment and cell phone, he suffered further financial hardship. He expressed that he was sad at the loss of his photographs which were on his cell phone. [47] He described that this crime also impacted his family. His family has had to travel many miles to be with him through his recuperation. F.J. had to undergo multiple surgeries as result of the assault. [48] It is clear that this assault has had profound and lasting effect on F.J. F.J. showed considerable courage and composure in testifying about this terrifying incident. He should be commended for his strength of character. CROWN SUBMISSIONS ON SENTENCE [49] It is the Crown’s position that this is very serious aggravated sexual assault. It is the Crown’s position that it is an aggravating factor that this assault occurred in the course of home invasion. The Crown takes the position that s. 348.1 of the Criminal Code applies. [50] The Crown submits that it is also aggravating that weapons were used in the course of the assault. The Crown submits that it is further aggravating that Calvin Klemenz and Thomas Matychuk perpetrated an assault on F.J., left his residence and returned shortly thereafter to continue the assault. The Crown submits it is aggravating that there was significant personal injury to F.J. The Crown suggests it is further aggravating that Calvin Klemenz and Thomas Matychuk each have significant criminal records. It is the Crown’s position that the appropriate sentence is period of incarceration, prior to any adjustments for pre-trial custody, of 12 years for each offender. The Crown relies on the following cases to support their position on sentencing: R. v. Fraser, 2007 SKCA 113 (CanLII), 302 Sask. R. 210 R. v. Payne, 2007 SKCA 28 (CanLII), 293 Sask. R. 31 R. v. Pelly, (R.J.), 2006 SKCA 60 (CanLII), 279 Sask. R. 252 R. v. Osecap, 2006 SKCA 69 (CanLII), 289 Sask. R. R. v. Campeau, 2009 SKCA (CanLII), 320 Sask. R. 132 R. v. Bellegarde, 2010 SKCA 15 (CanLII), 346 Sask. R. 161 R. v. Janvier, 2011 SKCA 133 (CanLII), 377 Sask. R. 129 R. v. Asapace, 2011 SKCA 139 (CanLII), 377 Sask. R. 210. [51] The Crown also asks for the following ancillary orders: an order pursuant to s. 109(1) of the Criminal Code prohibiting each of Calvin Klemenz and Thomas Matychuk from possession of firearms; an order pursuant to s. 487.052(1) for the taking of bodily substances for the purposes of forensic DNA analysis from each offender; and, an order under s. 490.012 requiring Calvin Klemenz and Thomas Matychuk each to comply with the Sex Offender Information Registration Act, S.C. 2004, c. 10. [52] The Crown indicates that Calvin Klemenz has been in custody in relation to these charges since April 11, 2012. The Crown indicates that Thomas Matychuk has been in custody in relation to these charges since July 17, 2012. The Crown submits that both offenders should be given 1:1 credit for pre-sentence custody. DEFENCE SUBMISSION ON SENTENCE Calvin Klemenz [53] It is the position of counsel for Calvin Klemenz that the appropriate range of sentence for Calvin Klemenz for this offence is sentence of approximately six years incarceration less credit for pre-trial custody time. Defence counsel acknowledges Calvin Klemenz is only entitled to 1:1 credit for his remand time. Defence counsel suggests that the cases referred to by the Crown present circumstances which were more aggravating than the circumstances of this offence. Defence counsel refers to Calvin Klemenz’s strong family and community support. He submits the court should consider the letters of support filed on Calvin Klemenz’s behalf. He also points to Calvin Klemenz’s attempt to make positive steps in his life, including his work at recovery from addiction, the taking of two bible study classes and life skills training class, as well as working towards his grade 12 GED, as mitigating circumstances. Counsel points out that Calvin Klemenz has had no institutional infractions while on remand. Defence counsel suggests that the fact that Calvin Klemenz may have been convicted as party may be mitigating factor in sentencing. Thomas Matychuk [54] It is the position of counsel for Thomas Matychuk that the appropriate range of sentence for Thomas Matychuk for this offence is sentence in the range of six years incarceration less credit for pre-trial custody time. Defence counsel suggests that six year sentence is significant and sends significant message addressing the concerns of denunciation and deterrence. Defence counsel suggests that in the cases referred to by the Crown, the circumstances were more aggravating than those in this offence. Defence counsel refers to Thomas Matychuk’s family support including that of his mother and sisters and Thomas Matychuk’s attempt to take positive steps in his life. Thomas Matychuk has acknowledged his addiction issues and is attempting to resolve them. He has taken part in bible studies and whatever programing was available while on remand. He has had no institutional infractions while awaiting trial. Defence counsel also suggests that the fact that Thomas Matychuk may have been convicted as party may be mitigating factor in sentencing. [55] Counsel on behalf of Thomas Matychuk also suggests that Thomas Matychuk is entitled to the one and one-half credit for time spent in custody prior to sentence. Counsel refers to s. 719(3.1) of the Criminal Code and asks the court to consider providing Thomas Matychuk with that credit. [56] Defence counsel have provided me with the following cases to assist in my deliberations: R. v. Mullins, 2011 SKQB 478 (CanLII), 388 Sask. R. 221 R. v. G. (L.L.), 2011 MBQB 269 (CanLII), 273 Man. R. (2d) 207 (aff’d by 2012 MBCA 106 (CanLII), 284 Man. R. (2d) 285) R. v. Badger, 2013 SKQB 347 (CanLII), [2013] S.J. No. 615 (QL) R. v. Waffle, 2013 SKQB 186 (CanLII), 421 Sask. R. R. v. Morin, 2013 ABPC (CanLII), [2013] A. J. No. 26 (QL) R. v. C. (E.B.), 2005 ABCA 61 (CanLII), 363 A.R. 111 R. v. Chisholm, (1985) 1985 CanLII 3587 (NS CA), 18 C.C.C. (3d) 518, 67 N.S.R. (2d) 66 (N.S.S.C.). [57] Defence counsel also has raised the issue of parity of sentence both in relation to sentences in other cases but also as between these offenders and the third accused charged for this incident. Defence counsel submits that the third accused involved in this incident is being treated in substantially different way by the Crown, to the extent that the Crown may be suggesting dramatically different sentence for this third offender. The third offender has been charged but has yet to enter plea and no sentence has been imposed on this individual. [58] As stated, it is incumbent upon judges to sentence in accordance with the principles of sentencing, beginning with the fundamental principle spelled out in s. 718.1 of the Criminal Code. This fundamental principle is this: sentence must be proportionate to the gravity of the offence and the degree of responsibility of the offender. The gravity of an offence lies in its nature, in its comparative seriousness, and in the harm caused in its commission. The degree of the responsibility of the offender lies in the extent of the offender’s moral culpability in committing the offence. [59] Here, the offence committed by Calvin Klemenz and Thomas Matychuk constitutes grave and serious offence. The offence of break and enter and commit aggravated sexual assault is an indictable offence punishable by as much as life imprisonment. This speaks to Parliament’s view of the gravity of the offence when compared with others, and to the gravity relative to the circumstances in which it may be committed. [60] Here, the circumstances in which the offence was committed, coupled with the harm caused to F.J., amount to very serious version of break and enter dwelling house and commit aggravated sexual assault. Extreme violence and extreme sexual violence was perpetrated on the victim. Serious personal injury was caused to the victim. The injuries caused had foreseeable physical and psychological consequences of substantial, even enduring, nature. The gravity of the circumstances of this offence is extremely severe and serious, and the harm caused profound. [61] The degree of responsibility of each of Calvin Klemenz and Thomas Matychuk is significant. While it is not clear as to who inflicted what blows on F.J., it is clear from the verdict and the evidence supporting the verdict that both Calvin Klemenz and Thomas Matychuk acted either as principles or as aiders to each other in these offences. These offenders acted with some forethought. They broke and entered Ramco Paving to steal. While neither may have expected someone to be living at Ramco when they drove in the Ramco lot, one of the perpetrators stuck their head into F.J.’s home and saw that F.J. was inside the home. This person went back out of the trailer and then Mr. Klemenz and Mr. Matychuk entered F.J.’s home. At that point they were both aware that there was an individual living in the trailer. They entered F.J.’s home and beat F.J. by stomping on his neck and back and by hitting him repeatedly with mallet hammer, all the while robbing him of his wallet, cell phone and electronic equipment. They then left the home. They returned shortly thereafter and re-entered the home to further violently assault F.J., this time both physically and sexually. They participated in the attacks in wanton disregard of the law and the well-being of the victim F.J., taking advantage of F.J. in particularly vulnerable circumstances. Calvin Klemenz and Thomas Matychuk both have extensive experience in the criminal justice system. They each may be taken to have clearly appreciated the seriousness of what was undertaken along with the prospect of being held responsible. Still they each persisted in the offence, leaving behind victim who suffered lasting physical and psychological harm. Calvin Klemenz and Thomas Matychuk are each morally culpable for the offence and injuries caused to F.J. Each are equally culpable for the essential substantive elements of the offence, including the fault component. [62] The gravity of this offence is severe in relation to each offender. The degree of responsibility and moral culpability of each offender is significant. [63] court is also required, pursuant to s. 718.2(b), to ensure that any sentence which it imposes is similar to sentences imposed on similar offenders for similar offences committed in similar circumstances. The purpose of parity is to ensure fairness by avoiding disproportionate sentences amongst convicted persons. If the facts and circumstances of two offences are substantially similar, there should be equivalent or like sentences. However, sentences for particular offences do vary to some degree based on the primary concern in respect of sentence, the nature of the crime and, of course, the individual offender. Sentencing Jurisprudence [64] have canvassed the relevant decisions of the Saskatchewan Court of Appeal and various decisions of other courts which have not been subject to appeal, including the cases provided to me by Crown and defence. These cases provide review of the sentencing cases in situations similar to the one before me at present which assist with the principle of parity. will refer to some of them. [65] will deal firstly with authorities dealing with sentences in relation to sexual assaults perpetrated in the course of home invasion. [66] In Osecap, supra, the offender was convicted of break and entering dwelling house and committing robbery, contrary to s. 348(1)(b) and aggravated sexual assault under s. 273(2). In that case, the victim was an 88 year old woman. She suffered blow to her temple which caused acute internal hemorrhage. She had gouges in her thighs and other injuries. She was found by relatives in an unresponsive condition. The accused, Osecap, had over 89 previous convictions, including 11 assaults, the majority of which had occurred in the last 15 years. The court held that the offender’s crimes were said to be escalating in violence. The offender was sentenced to 15 years imprisonment with four year’s credit for remand. He appealed. The Saskatchewan Court of Appeal in 2006 dismissed his appeal. In the course of its decision, the Court of Appeal noted that 15 years was at the top of the range but not outside the range. The court said at para. 6: Finally, the appellant argued that the 15 years of incarceration was excessive. It should be noted that this was crime of extreme gravity. This Court has recently commented in R. v. Pelly on the need to denounce an offence of this nature and on the need, after the accumulation of long record, to put deterrence and denunciation in the foreground. The home invasion by itself would attract severe sentence, as would the aggravated sexual assault. In our view review of the Pelly case, among others in this jurisdiction, and the authorities referred to in Pelly show this sentence to be, albeit severe, within the range that was open to the trial judge to impose. We are of the view it is near the top of the range for the facts here, but we cannot say it is outside it. Accordingly, this sentence appeal is dismissed as well. [67] In R. v. Keenatch, 2009 SKPC 72 (CanLII), [2009] S.J. No. 395 (QL), the offender was convicted of 15 offences, including aggravated sexual assault and attempted murder. The conviction for attempted murder and aggravated sexual assault stem from the same occurrence where the offender broke into home. When the occupants of the home returned, the offender re-entered wearing mask. He grabbed the victim from behind, stabbed her near the eye and second time near the temple. He stabbed her third time in the chest. While the victim was on the floor, the offender placed one hand around her throat and inserted his fingers into her vagina before stabbing her several times in the back and choking her into unconsciousness. The offender had 48 previous convictions. Gladue factors (R. v. Gladue, 1999 CanLII 679 (SCC), [1999] S.C.R. 688, [1999] S.C.J. No. 19 (QL)) were relevant. The Saskatchewan Provincial Court sentenced the accused to nine years imprisonment in addition to the two years and eight months he had spent on remand. [68] The Saskatchewan Court of Appeal, in Bellegarde, supra, reduced the offender’s sentence on appeal from 15 years to 12 years. In that case, the offender was convicted of sexual assault which was committed during home invasion and which occurred in front of the victim’s two children. The setting for the offence was the victim’s rural farmhouse and the offender and victim were strangers. In Bellegarde, the offender’s truck had jackknifed in front of the victim’s yard. She was home alone with two pre-school children. The offender came to the door and requested assistance. The victim provided phone. The offender forced his way into her home and raped the victim on two separate occasions, the second rape involving anal violation of the victim. The offender threatened to kill the victim during the course of the assaults. The offender was 35 year old aboriginal man with two children of his own, both in their teens. He had the support of his parents and he was employed at the time of the offence. He had relatively minor criminal record that consisted of driving offences. The offender was said to have violent childhood and drinking problem. He expressed remorse and shame and expressed his willingness to take treatment. Justice Richards (as he then was), writing for the court, noted that the Saskatchewan Court of Appeal had long recognized the aggravating circumstances of home invasion. Justice Richards said the following: 24 It is useful to begin the analysis of Mr. Bellegarde's position by noting that this Court has long recognized the aggravating effect of home invasion on sentencing decision. In R. v. Seymour (1994), 1994 CanLII 4672 (SK CA), 116 Sask. R. 234 (C.A.), Sherstobitoff J.A. said this: ... Crimes of this nature are the very crimes that give rise to public concern as to whether the justice system is adequately protecting the public from what many perceive to be continuing rise in violence and lawlessness in our society. The duty of the court in such cases is to protect the public right to be secure in one's home and the public right to be free from gratuitous and unlawful assaults, and to maintain public confidence in the administration of justice by imposing penalties commensurate to such crimes. The sentences must also be of sufficient force to deter [the accused] as well as others from committing such crimes in the future. 25 The aggravating character of home invasions in relation to the offences of stealing firearms, unlawful confinement, robbery, extortion and break and entry with intent was ultimately codified by Parliament in 2002 in the form of s. 348.1 of the Criminal Code. It reads as follows: 348.1 If person is convicted of an offence under section 98 or 98.1, subsection 279(2) or section 343, 346 or 348 in relation to dwelling‑house, the court imposing the sentence on the person shall consider as an aggravating circumstance the fact that the dwelling‑house was occupied at the time of the commission of the offence and that the person, in committing the offence, (a) knew that or was reckless as to whether the dwelling‑house was occupied; and (b) used violence or threats of violence to person or property. [69] The offender Bellegarde maintained that the appropriate range of sentence was eight years. Justice Richards noted the following aggravating and mitigating circumstances in that case: 55 ... In terms of aggravating factors, the following points must be noted: (a) A.B. was acting as Good Samaritan and provided assistance to Mr. Bellegarde, (b) A.B. was vulnerable in that she lived on farm site removed from other people, (c) the assault itself was, by definition, extremely vile, degrading and violative of A.B.'s personal integrity, (d) A.B. was raped not once but twice, the second time anally while she was bound, (e) in the course of the assault, Mr. Bellegarde threatened A.B. and suggested he might kill her, (f) A.B.'s young children watched at least some of the assault, and (g) the assault had significant effect on both A.B. and her family. It drastically undermined their sense of security and continues to haunt them. 56 There are also some considerations which, although not necessarily going to the root nature of the offence, are relevant for sentencing purposes. They are: (a) Mr. Bellegarde did not use weapon in the course of the assault, (b) A.B. apparently suffered no physical injuries and was not assaulted beyond the application of the force involved in the sexual crimes themselves, (c) Mr. Bellegarde had limited and unrelated criminal record, (d) Mr. Bellegarde had been employed and productive member of the community for many years, (e) although A.B. was required to testify at the preliminary inquiry, she was not cross‑examined and Mr. Bellegarde then pled guilty thus sparing A.B. the ordeal of giving evidence at trial, (f) Mr. Bellegarde expressed shame and remorse for the crime, offered an apology to A.B. and indicated willingness to take any and all suitable programming, and (g) Mr. Bellegarde was assessed as low to moderate risk to reoffend. [70] Justice Richards went on to note that the Saskatchewan Court of Appeal, in Osecap, supra, had commented that sentence of 15 years was at the top end of the range for an egregious aggravated sexual assault. Justice Richards noted that in Bellegarde, the assault was not an aggravated sexual assault and should not attract the same sentence. He said at paras. 57 In light of all of these factors, it is apparent that Mr. Bellegarde's offence should attract lesser sanction than those imposed in cases like R. v. Pelly and R. v. Osecap. In Pelly, it will be recalled, the offender had record involving over 100 convictions. The criminal activity at issue consisted of two separate home invasions where, in each, Mr. Pelly inflicted serious injuries on his victims. In R. v. Osecap, the accused also had an extremely long record which included more than ten assaults. He seriously injured an elderly woman in the course of robbery and an aggravated sexual assault. Notably, the 15 year sentence in that case was described by this Court as being near the top of the applicable range. As result, it can be seen that the 15 year sentence imposed on Mr. Bellegarde does not properly reflect the principle of parity. 58 It would no doubt be difficult to properly describe the fear and degradation A.B. experienced as result of Mr. Bellegarde's attack. Nonetheless, it is our duty to ensure that sentences comply with the requirements of the Criminal Code. As result, the sentence imposed on Mr. Bellegarde must be set aside. Taking into account all of the relevant factors listed above, as well as the applicable sentencing authorities, the appropriate period of imprisonment in this case is 12 years. This, obviously, is still very heavy sentence and one which reflects our complete agreement with the sentencing judge about the need to protect the residents of rural and remote areas from the sort of crime committed by Mr. Bellegarde. The sanctions imposed in cases of this kind must be severe and must reflect the right of the residents of this Province to feel safe in their own homes. [71] In Asapace, supra, the offender had been sentenced to incarceration for aggravated sexual assault for nine years. The offender appealed to the Saskatchewan Court of Appeal, but the appeal was dismissed. In that case, the offender and victim had dated for year. At the time of the incident the two had split up and the victim was involved with someone else. The victim and her new boyfriend were in the victim’s house in her second story bedroom when the offender entered the bedroom and attacked the boyfriend. The boyfriend jumped out of the window, naked, and contacted police. The victim was left alone with the offender. The offender hit her with an aluminum baseball bat causing deep gash on her head. He then punched, kicked, kneed and stepped on her. He hit her twice more with the bat on the back and ankle. The victim wrestled control of the bat and threw it out the window. The offender then began to beat on her legs and body with coat hangers. He threatened to kill her if she made any noise. He then forced her to wash herself and forced her to provide fellatio to him, intermittently striking her in the face as she did so. The chain of events was only brought to an end when police entered the home. The victim suffered significant injuries. She required eight stitches to close her head wound and required half cast for her ankle in order to walk. She experienced extensive bruising and spent day in hospital. Justice Caldwell, in dismissing the appeal from sentence, said the following: 77 Mr. Asapace sought leave to appeal from his global sentence of nine years imprisonment. would grant leave, but deny the appeal from sentence. custodial term of nine years is at the high end of the range but not demonstrably unfit in the circumstances. 78 The judge imposed the global sentence of nine years in respect of the aggravated sexual assault conviction discussed above (s. 273 of the Criminal Code) and eight other offences to which Mr. Asapace had either plead guilty or of which he had been convicted after trial, including uttering threat to cause death (s. 264.1(1)(a)), assault (s. 266), assaulting peace officer (s. 270(1)(a)), assault causing bodily harm (s. 267(b)), failure to attend court (s. 145(2)(a)), failure to comply with undertakings (s. 145(3)), and failure to comply with recognizance (two counts) (s. 145(3)). 79 Importantly, other than the s. 270(1)(a) assault on peace officer, Mr. Asapace perpetrated each of the assaults and the aggravated sexual assault on the same woman, who was, when the assaults occurred, in domestic relationship with him and, at the time of the aggravated sexual assault, his recent ex‑girlfriend. Furthermore, as is evident from these reasons, the circumstances of the aggravated sexual assault are particularly execrable having occurred in the sanctity of the complainant's home, after Mr. Asapace had severely beaten her with his fists, feet, knees, baseball bat and coat hangers, after he had forced her to bathe preparatory to the sexual assault, and after he had threatened her with death. The judge described the circumstances of the sexual assault as "vicious", "prolonged" and "dehumanizing". 80 In my judgment, on these facts, the judge correctly emphasized the sentencing objectives of deterrence, denunciation and protection of the public in imposing global sentence of nine years, less three years credit for 18 months of custody pending trial; which is fit sentence consistent with the gravity of Mr. Asapace's offences and his moral culpability in committing them. [72] In R. v. G. (L.L.), 2012 MBCA 106 (CanLII), supra, the Manitoba Court of Appeal reduced 10 year sentence to five years. In that case, the complainant was intoxicated and passed out in her bed. The accused broke into the complainant’s home and sexually assaulted her in her bedroom while two of her children, K. and V., watched. The complainant was unaware of the sexual assault. The Manitoba Court of Appeal indicated that the sentence imposed was unjustly harsh and unfit and suggested that the sentencing judge erred when he found that the circumstances of the offence were analogous to home invasion robbery and then imposed sentence in accordance with the Manitoba Court of Appeal case in R. v. Pakoo (K.G.), 2004 MBCA 157 (CanLII), 190 Man. R. (2d) 133. [73] In Morin, supra, the offender pled guilty to break and enter dwelling house and commit sexual assault causing bodily harm, contrary to s. 348(1)(b), uttering threats to cause the complainant bodily harm contrary to s. 264.1 and unlawful confinement contrary to s. 279(2) of the Criminal Code. The circumstances involved 79 year old woman who was asleep in her home. The offender broke in and sexually assaulted the victim. He attempted both vaginal and anal intercourse and threatened the use of weapon. The court noted that the offence took place in the context of home invasion and involved major sexual assault which terrorized the complainant and inflicted both physical and psychological injuries. starting point of eight years for such an offence was the law in Alberta. The offender had dated and unrelated criminal record with no history of violence. The Alberta Provincial Court judge indicated that the starting point established by the Court of Appeal for an offence of this nature is eight years incarceration. The trial judge found the circumstances were more severe and sentenced the offender to nine years incarceration. [74] Offences for assaults other than sexual assaults committed in situations involving home invasion are also instructive. In R. v. Olivares, 2004 SKCA (SentDig) 25, the offender had been stabbed by the victim year prior to the offence in question and he was nearly killed. The offender, seeking revenge, along with four to seven other people, stormed the home where the victim was said to be hiding. The victim’s arm was broken and he required numerous stitches for cuts, one of his hands was badly smashed. second victim suffered multiple open wounds to his forearm. weapon was discharged in the course of the events. mother and her young child were present at the home. The offender was 24 with grade 10 education. He worked as labourer for his uncle and he had prior record going back nine years including 25 charges of multiple assaults and robbery convictions. The accused was sentenced to serve six and one-half years minus time served on remand. The appeal from sentence was dismissed. [75] In R. v. Morash, 2006 SKCA 59 (CanLII), 279 Sask. R. 38, the accused broke and entered dwelling house and committed an aggravated assault. The incident began when teenager incited others to attend house to fight the occupants. large contingent of youths arrived at the home. The doors were broken down, the home was ransacked and multiple youths were engaged in fighting. The offender and his co-accused entered the house, taking part in the fight. They were looking for an individual who had thrown beer bottle at their car. Two individuals emerged from closet saying they had nothing to do with the incident. The two were badly beaten and one of the victims was struck in the head with whiskey bottle. The other victim was knocked unconscious and suffered brain damage. The offender here was sentenced to six years and eleven months which was upheld on appeal. [76] In Pelly, supra, the Crown appealed the sentence of an offender convicted of robbery, armed robbery, break and entry, and commit theft in relation to the dwelling houses of two separate victims. The offender was sentenced to six years of incarceration at trial, but the appeal was allowed and global sentence of 15 years was imposed. [77] The Court of Appeal in Pelly indicated that the objectives of deterrence, denunciation and protection of the public were paramount. The court also says that the initial sentence did not give adequate expression to the gravity and aggravating circumstances of the offences or the offender’s responsibility for them. The court noted that there were two separate home invasions which caused significant injury to two victims. Both home invasions were extremely violent and the first victim was stabbed twice in the chest and suffered various injuries. The second home invasion occurred few days later when the offender broke into hotel room and struck second victim with hammer. This victim also suffered serious injuries. The offender had an extensive record spanning 30 years and including over 100 offences. Most of the convictions related to theft and property, however, there were several offences which consisted of weapons and assault charges. The offender was 45 years old and had lived through harsh childhood. He was of aboriginal descent, he never finished school and he had drinking problem. Justice Cameron said the following: 39 The fact an offence such as robbery is committed in the context of "home invasion" has long been taken to constitute an aggravating circumstance within the implicit contemplation of section 718.2(a), and serious one at that. As noted by Sherstobitoff J.A. in R. v. Seymour (1994), 1994 CanLII 4672 (SK CA), 116 Sask.R. 234 (Sask C.A.) at 236: ... The point finds further illustration in the frequently cited case of R. v. Matwiy (1996), 1996 ABCA 63 (CanLII), 105 C.C.C. (3d) 251 (Alta. C.A.). 40 Following the decision in these and other such cases, when it became apparent that "home invasion" as an aggravating factor warranted express recognition and clarification, Parliament amended the Criminal Code to that end. This was done by the addition in 2002 of section 348.1, which reads thus: 348.1 Aggravating Circumstance‑home invasion‑If person is convicted of an offence under any of subsection 279(2) or sections 343, 346 and 348 in relation to dwelling‑house, the court imposing the sentence on the person shall consider as an aggravating circumstance the fact that the dwelling‑house was occupied at the time of the commission of the offence and that the person, in committing the offence, (a) knew that or was reckless as to whether the dwelling‑house was occupied; and (b) used violence or threats of violence to person or property. ... 51 Returning to the case at hand with the foregoing in mind, we note that both the robbery of Mr Nagy and the armed robbery of Mr Mohl occurred in the context of home invasion as an aggravating circumstance within the express contemplation of section 348.1. 52 This is substantial aggravating circumstance, as the cases demonstrate, and offences committed in these circumstances, robberies in particular, are customarily visited with sentences in the order of seven to 10 years, or even more depending on the presence of other aggravating factors. Judged in this light, the sentences imposed on the accused‑three years in relation to each of the primary offences‑may be seen to fall appreciably short in accounting for these aggravating circumstances. 53 On the whole, then, we are of the respectful opinion the sentences under appeal do not give adequate expression to: (i) the objectives of deterrence, denunciation, and protection of the public; (ii) the gravity of the offences and the degree of responsibility of the accused, as contemplated by the fundamental principle of sentencing mentioned in section 718.1 of the Criminal Code; and (iii) the aggravating circumstance that the offences occurred in the context of home invasions, as expressly recognized by section 348.1. It follows that we have decided to allow the appeal and vary the sentences. ... 57 It must be clear to all that crimes of this nature strike at the very core of peaceful and safe society, violate the security of the home, and often result in lasting physical and psychological injury. They are terrifying crimes, and it is imperative they be treated with the utmost seriousness in the interest of preserving public safety and upholding public confidence in the administration of justice. So, all should know that the courts of this province, in step with those of others, will come down hard on violent crimes entailing "home invasions" in order to protect the public from the invasiveness and violence associated with them. 58 Having regard for this, and for everything we have had to say of the matter, including the gravity of the offences and the aggravating circumstances, we have decided to set aside the sentences imposed in the Court of Queen's Bench in relation to the primary offences committed by the accused, namely the robbery involving Mr Nagy offence and armed robbery involving Mr Mohl. We have also decided to impose in its place global sentence of 15 years in respect of these offences, to be followed by six year period of community supervision as ordered by the trial judge. [78] In Payne, supra, the offender was convicted at trial for three counts of assault with weapon, breaking and entering, and three breaches of conditions from earlier charges. The offender was initially sentenced to two years less day. The Crown appealed. The offender had entered dwelling house and had struck the occupants with the blunt end of machete. The offender had an extensive record and difficult childhood. However, he was new father, and had the support of his family. He was employed at two jobs. [79] The Court of Appeal allowed the appeal, and imposed sentence of four years. Smith J.A. held that the initial sentence was demonstrably unfit in light of the aggravating circumstance of the home invasion. In the course of judgment, Smith J.A. noted: [18] The Crown takes the position that the trial judge erred in distinguishing Pelly, and that the effect of that decision is to require, at minimum, sentence of seven years incarceration in this case. Counsel argues that the trial judge erred in emphasizing the possibility of rehabilitation in this case, and that the governing sentencing objectives in any case falling within s. 348.1 are denunciation and deterrence. While Crown counsel concedes that the circumstances in Pelly were considerably more grave than those in the instant case, he argues that this Court in Pelly established range starting at seven years, for the least serious case of "home invasion" (for mature offender, of previously good character, who enters an early guilty plea, in instances of no significant injury), to be increased from there in accordance with factors that increase the gravity of the offence or the circumstances of the offender. It is the Crown's argument, in effect, that Pelly established "starting point" sentence of seven years, which can be increased, in appropriate circumstances, but not decreased. [19] In my view, Pelly should not be read as the Crown urges us to read it. Pelly involved two separate extremely violent home invasions for which consecutive sentences were imposed… The sentence imposed by this Court in relation to this incident, taken alone, was seven years incarceration, before taking into account credit for time spent on remand. In addition, as the trial judge in the instant case pointed out, all of the cases relied upon in Pelly reflected similarly violent circumstances. Moreover, as has been noted, the circumstances of the two offenders are considerably different. [20] The circumstances of the instant case, while without question serious, are nonetheless quite distinct. At heart, they represent an altercation between persons who knew each other, which, admittedly, took place in dwelling house. The respondent and his friends gained entry to the house without the permission of the victims and the trial judge rightly found that the circumstances fell within s. 348.1. He treated this as an aggravating factor. Yet, significantly, no one was seriously injured and the trial judge found as fact that significant injury was not intended. [22] At the same time, it is my respectful view that the trial judge nonetheless failed to give sufficient weight to the aggravating factors that did exist in this case. As was pointed out in Pelly, central purpose of s. 348.1 is to recognize the peculiar vulnerability of victims who are subject to violence or threats of violence in their homes, where they are out of sight of passers‑by and often unable to summon help. In addition, this was violent offence. The respondent entered this home wielding machete. While the trial judge found that the respondent intentionally struck with the dull side of the machete, and did not intend to use it as knife, he clearly meant to use it, at the very least, for intimidation, and did, in fact, strike the three victims with it. [23] This Court has previously recognized the need to be vigilant to protect those who work in situations that make them particularly vulnerable to robbery and violence, such as all night convenience stores or gas bars. No one can doubt that, had the respondent entered such an establishment, wielding machete, he would have been subject to minimum prison term of three years, even if the machete were used only to intimidate. The Crown rightly argued that it is unacceptably disproportionate to the gravity of the offence to treat home invasion, armed with such weapon, any less seriously. It is more, not less, grave. [80] In Fraser, supra, the offender appealed sentence of eight years for eight offences including assault with weapon, unlawful confinement and breaking and entering an occupied dwelling house. The accused had broken into his mother’s home and violently assaulted her. The accused had various mental health issues. The appeal was dismissed by Chief Justice Klebuc (as he then was) who noted that the sentence was within the appropriate range of seven to ten years for robbery or break and enter which occurred in the context of home invasion. Justice Klebuc noted: 25 reject the argument that there is "typical" home invasion and that Mr. Fraser's conduct does not constitute such an invasion. home invasion is not defined by the relationship between the parties, nor the identity of the occupants. Mr. Fraser knew he was not invited to enter the home; in fact, he knew there was non‑contact order issued against him with regard to his mother. Furthermore, it is irrelevant that the house was owned by his mother, as there is nothing in the case law to suggest that "home invasion" requires the home to be occupied by strangers. ... 27 The Court in Pelly, supra indicated that robbery or break and enter occurring in the context of home invasion is customarily visited with sentence in the range of seven to ten years. ... 30 The Court in R. v. Payne, 2007 SKCA 28 (CanLII), (2007), 293 Sask. R. 31 affirmed (at para. 22) its earlier statement in Pelly, supra that, "a central purpose of s. 348.1 is to recognize the peculiar vulnerability of victims who are subject to violence or threats of violence in their homes." It further noted that the range of applicable sentences for home invasion is materially affected by the degree of the offender's violence in carrying out the offence. Based on the degree of violence by the offender, namely, that the offender broke into the victims' home, threatened them and struck them with the dull side of machete for the purposes of intimidating them, but not with the intention of cutting them, the Court set aside sentence of two years less day and imposed sentence of four years. 31 reject Mr. Fraser's submission that the sentencing judge in the instant case interpreted Pelly too restrictively and thereby failed to craft fit sentence pursuant to s. 718.1. The sentencing judge clearly took into account the degree of violence on the part of Mr. Fraser, carefully weighed it against the violence involved in Pelly, and assessed an appropriate sentence within the applicable range. Further, when the violence of Mr. Fraser is weighed against the greater violence by the offender in Pelly, and the lesser violence by the offender in Payne, the result confirms his sentence is not demonstrably unfit. 55 As discussed earlier, this Court in Pelly, supra suggested range of sentence between seven and ten years for offences occurring in the context of home invasion and also clearly indicated that such range is only starting point which may be adjusted to account for any relevant mitigating and aggravating factors. [81] In Campeau, supra, the Crown appealed from global sentence of 18 months imprisonment following the offender's conviction for breaking and entering dwelling‑house to commit an assault. The victim had been struck about her hands and face, had some of her hair pulled, her nose fractured, and was made the subject of threatening and degrading language. The offender had long criminal record, and had experienced difficult childhood. The offender was the father of three children. Chief Justice Klebuc (as he then was) dismissed the appeal. [24] The submissions by the parties suggest that uncertainty exists as to whether "home invasion" for the purposes of s. 348.1 is synonymous with "home invasion robbery". Simply put, it is not. Section 348.1 creates specific aggravating circumstance which is to be taken into account in addition to all other aggravating circumstances, when imposing sentence for the offence of unlawful confinement contrary to s. 279(2), robbery contrary to s. 343, extortion contrary to s. 346, or break and enter contrary to s. 348(1) ("the listed crimes"), if any of these offences are committed at or in relation to dwelling‑house. The essential elements of home invasion are: (1) occupancy of dwelling‑house at the time one of the listed crimes was committed; (2) knowledge or recklessness on the part of the offender as to whether the dwelling‑house was occupied; and (3) actual or threatened use of violence to persons or property. The additional factors in R. v. Matwiy and Fraser, supra relating to "home invasion robbery" are not per se essential to found "home invasion". From this starting point, turn to the authorities relied upon by the Crown. [32] In sum, Pelly does not impose mandatory starting point sentence of seven years for all forms of home invasion. Rather, as noted in Payne, each case involving home invasion within the meaning of s. 348.1, must be decided on its own facts having regard to aggravating factors such as (i) the motive for unlawfully entering the dwelling‑house; (ii) the degree of violence inflicted on the victim; (iii) the nature of the accompanying listed offences; and (iv) other factors relevant to the listed offences. [34] The answer to the above question rests on whether sentence of four years is "substantial and marked departure from the sentences customarily imposed for similar offenders committing similar crimes. Given that this Court in Payne held that sentence equivalent to four years for home invasion involving minor assault with weapon was within the acceptable range, the sentence under appeal can only be demonstrably unfit if it brings into play one or more of the applicable sentencing factors not considered in Payne. [37] In my view, neither the aggravating factors nor the submissions offered by the Crown regarding the factors of denunciation, deterrence, rehabilitation and safety of the public, so materially differ from those considered in Payne as to warrant dramatic increase in the sentence imposed by the learned trial judge. While the sentence under appeal might be viewed as light, or on the edge of what might be considered to be within the applicable range, nothing before me indicates that it is demonstrably unfit. [82] The Saskatchewan Court of Appeal, in Campeau, supra, indicated that for the purposes of s. 348.1, the term home invasion is not synonymous with home invasion robbery. The essential elements of home invasion under s. 348.1 are: 1) occupancy of the dwelling house when the listed crime was committed; 2) knowledge or recklessness of the offender’s part about whether the dwelling house was occupied; and 3) actual or threatened use of violence to persons. The Court of Appeal said that under this section, aggravating factors include the motive underlying the entry, the degree of violence inflicted on the victim, the nature of the accompanying listed offence and other factors related to the listed offence. [83] In R. v. Keepness, 2010 SKCA 69 (CanLII), 359 Sask. R. 34, the Crown successfully appealed the sentence for manslaughter against three offenders. The manslaughter had occurred during home invasion. The offenders were part of group of four men who had forcefully entered home in an attempt to steal drugs. During the course of the home invasion, the offenders seriously injured two occupants of the house. third occupant was killed. The trial judge rendered sentence of eleven and one-half years for manslaughter and concurrent sentences of seven years apiece for the aggravated assault of the other two victims. The appeal was allowed. The sentence of eleven and one-half years for the manslaughter was substituted for sentence of 15 years. The aggravated assault sentences were left undisturbed. [84] The Manitoba Court of Appeal, in R. v. R.(P.S.), (1999) 1999 CanLII 4397 (MB CA), 138 Man. R. (2d) 75, [1999] M.J. No. 238 (QL), spoke strongly on the issue of sentencing in home invasion type cases. In that case, two assailants broke into the home that was occupied. The occupants were asleep and the two demanded money, pointing rifle at one of the occupants. Denunciation and deterrence are of paramount importance. The Court of Appeal indicated that incarceration in the range of seven to ten years was the appropriate sentence. [85] In R. v. Lemaigre, 2010 SKCA 158 (CanLII), 366 Sask. R. 299, the Crown appealed from sentence of five year’s imprisonment for serious home invasion. Two occupants of the home were assaulted, and the other occupants had been threatened with weapons. The two offenders had tried to remove one of the occupants from the home. The offenders were carrying loaded shotgun and two foot machete. The machete was swung, and the shotgun was pointed, at numerous occupants of the home. Children were present in the home at the time of the invasion. Lemaigre was 19 years old, and did not have lengthy record. He expressed remorse, acknowledged the terror that the victims faced, and accepted responsibility for his actions. He did not generally get into trouble unless he was drinking. He had family support. The appeal was dismissed. During the course of the judgment, Smith J.A. stated: [15] The Crown argues that the sentencing judge erred in holding that there was "four year starting point" for sentences for home invasions. do not read the sentencing decision this way. The trial judge appears to me to examine each decision from this Court with care and note the ways in which the offences before him were either less or more serious than the offences in those cases. He was clearly persuaded that this offender was susceptible to rehabilitation in light of his youth, positive reports from the family and the community, his limited criminal record and his remorse. [16] This Court can interfere only if the sentencing judge makes an error of law or imposes sentence that is demonstrably unfit. While we are of the view that the sentence imposed in this case was at the low end of the available sentences for an offence of this degree of seriousness, we are unable to conclude that it was demonstrably unfit when considered in light of the personal circumstances of this offender. [86] In R. v. Montgrand, 2010 SKCA 159 (CanLII), 366 Sask. R. 303, the Crown was successful in its appeal of the sentence of Montgrand, who was the co‑accused of Lemaigre, discussed above. Montgrand had much more significant record than Lemaigre; he presented no strong record of employment and/or academic success. Furthermore, he showed no remorse. The sentence of five years was set aside for an effective sentence of seven years, less time served. [87] Very recently, the Saskatchewan Court of Appeal, in the case of R. v. Debigare, McQuinn and Schachtel, 2014 SKCA (CanLII), [2014] S.J. No. (QL), the Crown was successful in its appeal of suspended sentence imposed on three co-accused. At the time of the offence, Schachtel persuaded the other two offenders to beat up the victim. Neither Debigare nor McQuinn knew the victim. McQuinn drove the three offenders to the victim’s home where he lived with his girlfriend, who was eight month’s pregnant. Debigare armed himself with sledge hammer and McQuinn armed himself with box cutter style knife. He knocked at the door and when the door was opened, Debigare rushed into the home wielding sledge hammer. He struck the victim’s dog with the sledge hammer causing severe injury to the dog. Debigare continued swinging the sledge hammer, causing damage to the home. McQuinn followed, brandishing the knife. He found himself facing two men who were visiting the residence and confronted them with the knife and told them to sit down. He then followed Debigare to the back of the home. Schachtel entered the home after the other two accused and she was known to all of the individuals. Upon her entry, one of the female occupants of the home retreated to back bedroom where her baby had been sleeping in crib and locked herself in the room with the baby. The victim and his girlfriend were in their bedroom with the door closed. Debigare smashed their bedroom door off its hinges with the sledge hammer, entered the room and began to punch the victim. The assault was brief. Either Debigare or McQuinn pushed the victim’s girlfriend down onto the bed. Schachtel then entered the room and began to assault the victim’s girlfriend. She struggled with her on the bed and then struck her repeatedly with pillow. The offenders all then left the home, but before doing so, Schachtel twice warned the occupants that if any of them said anything or called the police, she and her accomplices would be back for retribution. Debigare had no previous criminal record, nor did McQuinn. Both had positive post-offence conduct. Debigare was sentenced to 18 month’s imprisonment, followed by an 18 month probation order. McQuinn was sentenced to 10 month’s imprisonment, followed by an 18 month probation order, the court having determined that his moral culpability was less than Debigare’s. Schachtel had previous criminal record and was facing charges of breach of probation for her probation order that she received by the trial judge. Schachtel received sentence of two years less day, followed by three year probation. The court articulated that the leniency of the sentences, especially in respect of Debigare and McQuinn, was also warranted by their respective post-sentence conduct and the aberrant nature of their offending in this case. [88] Sentences relating to convictions for sexual assault not in home invasion situation, are also instructive. In R. v. P.(F.K.), 1985 SKCA (SentDig) 90, the offender was convicted of aggravated sexual assault. The offender was illiterate, had drug problem, and exhibited bizarre and violent behaviour. He had exhibited an ongoing pattern of violence in the community. The victim was 58 year old widow. Her jaw was fractured, and she suffered extensive cuts and bruises. She believed she would be killed during the assault. The assault was categorized as one of "stark horror". The original sentence of seven years was reduced on appeal to five years. [89] Badger, supra, is case included in the materials presented by counsel. The case concerned violent sexual assault. There had been repeated occurrences of non‑consensual sexual intercourse over number of hours between the offender and complainant. These occurrences were accompanied by physical violence. The victim was traumatized. The offender was 48. He had criminal record spanning 25 years and including 87 prior offences. Some of these prior offences had been violent. The offender was assessed as high risk to re-offend. Gladue (supra) factors were relevant. The offender was sentenced to total of eight years. [90] The cases have referred to discuss the range of sentences imposed by courts for offences similar to the one presently before me. It is clear from the cases that the sentencing objectives of deterrence, denunciation and protection of the public are the primary objectives in sentencing for these types of offences. review of the sentences imposed in relation for convictions for break and enter dwelling house and commit aggravated sexual assault indicates that the range of sentences in Saskatchewan appears to be between eight years and 15 years. The Court of Appeal in Pelly indicated that conviction for violent assault occurring in the context of home invasion robbery is customarily visited with sentence in the range of seven to ten years, or more, depending on the presence of other aggravating factors. [91] As indicated earlier, defence counsel raised the issue of parity of sentence as between Calvin Klemenz and Thomas Matychuk and third co-accused not before this Court. Defence counsel suggested that the Crown was taking significantly different position on sentence in relation to the third co-accused. Defence counsel referred me to the cases of R. v. C. (E.B.), 2005 ABCA 61 (CanLII), 363 A.R. 111 and R. v. Chisholm, supra, on the issue of parity as between co-accused. [92] In C. (E.B.), the appellant and four others broke into the victim’s home and beat the victim with baseball bat. The conflict appeared to be retribution for quarrel between the victim and the appellant’s sister that occurred earlier in the day. [93] In C. (E.B.), the appellant pled guilty to break and enter dwelling house and commit common assault. Those who acted in concert with the appellant were never arrested. The appellant refused to reveal their identities citing fear for his and his family’s safety. The Crown was unable to particularize the appellant’s role in the assault since the victim did not know who had struck what blows. The trial judge found that the appellant acted in concert with the others and accordingly stated it made no difference who struck what blow. The sentencing judge imposed an eight month custodial sentence which was upheld on appeal. Justice Hunt on appeal said the following at para. 9: There is no error in the sentencing judge's having held the appellant fully responsible for the assault. In R. v. MacIntyre (1992), 135 A.R. 166 at para. (C.A.), this Court explained that when crime is committed by gang, the involvement of each individual should not be regarded in isolation. Rather, the sentencing judge should consider the group's collective actions. "Each member of the group must be taken to know that by committing individual assaults upon victim, he advances, and even encourages, the violence of the others." Accordingly, when person acts in concert with members of group or gang to victimize single victim, that person must accept the consequences that flow from the group action. [94] In Chisholm, supra, the accused pled guilty to nine counts of break and enter and theft, five charges of break and enter with intent and one charge of attempted break and enter and theft. The accused received suspended sentence with three year probation. The accused was accompanied by at least one other person on each offence but the identities of the other perpetrators where known. [95] co-accused entered guilty pleas on all 15 offences and he was sentenced to total of 15 months in prison. Another co-accused was involved in two break and enters and was sentenced to concurrent two month terms of imprisonment and probation. Another accused took part in six offences. He pled guilty and was sentenced to an eight month custodial sentence with three year term of probation. final accused pled guilty to four offences and he was sentenced to four month’s imprisonment. All co-accused were roughly the same age and had no serious criminal records. The Crown appealed the accused’s suspended sentence and three year probation order. The Crown’s appeal was dismissed. The appeal court indicated that sentencing involves blend of many factors with aims that often conflict and with competing interests are not always harmonized. The court went on to say that generally speaking, the court should try to make the sentence conform with that imposed on co-accused for the same offence by some other court, but where there are sufficient differences and circumstances between accused and co-accused, different sentences can be justified. [96] The issue of parity as between co-offenders and co-accused has been discussed by the Saskatchewan Court of Appeal. [97] In R. v. Omoth, 2011 SKCA 42 (CanLII), 371 Sask.R. 110 Richards J.A. (as he then was) noted: [25] agree entirely with Jackson J.A.'s point that parity in sentencing is very important. It is obviously an essential consideration in the administration of criminal justice and unjustified differences in sentencing can be very corrosive of both public and offender confidence in the system. agree too that concerns about parity can be particularly acute in the case of co-accused. [26] That said, s. 718.2(b) of the Code is not absolute. Specifically, it does not automatically require that precisely the same sentence be imposed on similarly situated co-offenders. Rather, it says court must take into consideration the principle that sentence should be "similar" to sentences imposed on similar offenders for similar offences committed in similar circumstances. On this point, Lamer C.J.C. observed as follows in R. v. M. (C.A.), 1996 CanLII 230 (SCC), [1996] S.C.R. 500 at p. 567: ... Sentencing is an inherently individualized process, and the search for single appropriate sentence for similar offender and similar crime will frequently be fruitless exercise of academic abstraction. As well, sentences for particular offence should be expected to vary to some degree across various communities and regions in this country, as the "just and appropriate" mix of accepted sentencing goals will depend on the needs and current conditions of and in the particular community where the crime occurred. For these reasons, consistent with the general standard of review we articulated in Shropshire, believe that court of appeal should only intervene to minimize the disparity of sentences where the sentence imposed by the trial judge is in substantial and marked departure from the sentences customarily imposed for similar offenders committing similar crimes.[emphasis in original] [98] In R. v. Akapew, 2009 SKCA 137 (CanLII), 343 Sask.R. 155, Hunter J.A. noted: [20] The trial judge did not specifically refer to s. 718.2(b) of the Code, but her starting point appears to be the sentence imposed on the co-offender Starr. There is no principle that requires that the sentence imposed on co-offenders must be similar. In R. v. Knife, Cameron J.A. stated: 11 Counsel for the appellant submitted that even if the sentence was otherwise fit, it should be reduced because of the disparity between the appellant's sentence and that of the others. As matter of general principle, the courts seek to avoid disparate sentences, for the same or similar offences, particularly in the case of co-accused, but not without considerable qualification, for sentencing remains an individual process. The respective roles of the parties in the commission of the offence will be considered, along with their individual personal circumstances and may account, properly, for variations in sentence even in relation to the same crime. As in the case of an appellate court, faced with differing sentences, imposed by different judges, in respect of the same occurrence, the fitness of the comparative sentence will be considered and, if deemed inadequate, ignored. ... This affirms two important principles: sentencing is an individual process; and the sentence imposed on co-offender is persuasive when considering the parity principle, but if the sentence imposed on the co-offender is inadequate, it should be ignored. [21] The trial judge seemed to be of the view that the sentence to be imposed on Akapew as party to the offences pursuant to s. 21(1)(b) and (c) and s. 21(2), must be less than the sentence imposed on Starr, the principal of the offences in s. 249.1 and s. 221. This factor was emphasized by the trial judge when she considered each of the sentencing principles of proportionality, parity and totality of sentence. [22] Section 21 of the Code provides four ways person is party to an offence: (i) by committing it; (ii) aiding it; (iii) abetting it; or (iv) by having the common intention to carry out an unlawful act and to assist each other person may be liable for an offence beyond that which was initially contemplated. There is nothing in the language of s. 21 that provides that the degree of culpability is different for any of the four ways person may be party to an offence. The sentence for each offender is determined in accordance with the general sentencing principles stated in s. 718 to s. 718.3 of the Code. [99] Defence counsel submits that another participant in this event will soon receive sentence that is drastically different from the sentence that the Crown proposes here for Thomas Matychuk and Calvin Klemenz. However, contrary to the thrust of the defence counsel’s submission at this point to my knowledge, this third accused has not been convicted of any offence. Any evidence about the involvement of the third accused heard at the trial of Thomas Matychuk and Calvin Klemenz has no impact on the disposition of the third accused or her sentencing. She is presumed innocent. She is entitled to her own trial. She is entitled to plead or have trial. It is not clear whether the third accused will be found guilty of the same offences as Mr. Klemenz and Mr. Matychuk. It is not clear what findings of fact the court dealing with her charge will make. It may be that the third accused may not be convicted of the same offence for which Thomas Matychuk and Calvin Klemenz have been convicted. As well, the personal circumstances of this third accused may be different from the offenders here. In any event, she is not co-accused before this Court and at the point of sentencing Mr. Klemenz and Mr. Matychuk, the principle of parity does not extend to the third accused not yet convicted. [100] The principle of parity here applies to Calvin Klemenz and Thomas Matychuk, as between each other, and in relation to those cases where sentences have been imposed on similar offenders in similar circumstances. The cases that have earlier referred to provide me with the range of sentences on similar offenders for similar offences committed in similar circumstances which ensures that the principle of parity is addressed in sentencing here. [101] now turn to the next principle to be considered. The Criminal Code, in s. 718.2(a), enunciates that sentence must also be increased or reduced to account for any relevant aggravating or mitigating circumstance relating to the offence or the offender. Matters which are mitigating and/or aggravating must be viewed in context. Aggravating Circumstances [102] In 2002, s. 348 of the Criminal Code was amended to include s. 348.1 which codifies an offence committed in the context of home invasion as an aggravating factor for sentencing purposes. [103] Section 348.1 states that if person is convicted of an offence under s. 348 of the Criminal Code, in relation to dwelling house, the court imposing the sentence on the person shall consider, as an aggravating circumstance, the fact that the dwelling house was occupied at the time of the commission of the offence and that the person, in committing the offence, knew, or was reckless as to whether the dwelling house was occupied, and used violence or threats of violence to person or property. [104] Section 348.1 states: 348.1 If person is convicted of an offence under section 98 or 98.1, subsection 279(2) or section 343, 346 or 348 in relation to dwelling‑house, the court imposing the sentence on the person shall consider as an aggravating circumstance the fact that the dwelling‑house was occupied at the time of the commission of the offence and that the person, in committing the offence, (a) knew that or was reckless as to whether the dwelling‑house was occupied; and (b) used violence or threats of violence to person or property. [105] dwelling house is defined in s. of the Criminal Code as: 2. ... “dwelling‑house” means the whole or any part of building or structure that is kept or occupied as permanent or temporary residence, and includes ... (b) unit that is designed to be mobile and to be used as permanent or temporary residence and that is being used as such residence; [106] In the case before me, s. 348.1 of the Criminal Code does apply. It is an aggravating factor that this offence was committed as result of Calvin Klemenz and Thomas Matychuk breaking into the home of F.J. F.J. was asleep in his home in the middle of the night. Calvin Klemenz and Thomas Matychuk broke into Ramco Paving, along with third individual. While initially the offenders may not have expected anyone to be living on the Ramco Paving property, one of the three individuals stuck their head into F.J.’s home and at that point became aware this trailer was dwelling house and that it was occupied by F.J. This person brought their head back out of F.J.’s doorway and almost immediately thereafter the three perpetrators entered F.J.’s home. They entered the home knowing it was occupied. They entered for the purpose of robbing F.J. of his property. The offenders did rob F.J. find, based on the evidence, that Calvin Klemenz and Thomas Matychuk knew the dwelling house was occupied at the time of the commission of the offence. [107] The offenders then left F.J.’s home after assaulting him and re-entered the home second time. Again, they knew the home was occupied. They re-entered to obtain F.J.’s PIN number. They violently, sexually assaulted him. They used household items as weapons on the second entry. Calvin Klemenz and Thomas Matychuk perpetrated extreme violence with the use of weapons and perpetrated threats of violence to F.J. and to F.J.’s property. It is an aggravating factor under s. 348.1 for each of Mr. Matychuk and Mr. Klemenz that the offence for which these offenders were convicted was in relation to an occupied dwelling house. [108] There are other aggravating factors here as well and these factors apply to both offenders. They include that Calvin Klemenz and Thomas Matychuk both set out with plan to commit an offence. While accept that they did not plan initially to break into home and rob an individual, they did make plan to break and enter into the Ramco premises and steal. [109] It is an aggravating factor for both offenders that the offenders used threats of violence in committing the crime, including the threat to or discussion to kill F.J. and burn down his home to conceal evidence. [110] It is aggravating for both offenders that the offenders, after threatening F.J., took his cell phone with them, such that he was unable to call for help. [111] It is also aggravating for both offenders that several weapons were used in the course of this assault including hammer, pens and the handle of frying pan. [112] It is further aggravating for each offender that they subjected F.J. to extreme violence in order to carry out that plan. The offenders repeatedly stomped on the back of F.J.’s head and back. They repeatedly struck him with hammer. They sexually assaulted him, causing harm, by shoving frying pan handle and pens up his rectum. The violence was extremely vile, degrading and violative of F.J.’s personal integrity. [113] It is further aggravating for both offenders that there were two periods of assault. Calvin Klemenz and Thomas Matychuk violently assaulted F.J. and left the premises and returned to perpetrate further violence and commit the aggravated sexual assault upon F.J. [114] It is an aggravating factor for both offenders that this violence appeared to be gratuitous violence, and certainly, the sexual assault appeared to be absolutely gratuitous violence. F.J. had complied with each and every demand made by the offenders. F.J. got down on the floor when he was told and did not resist them in any way. Yet they perpetrated extreme violence upon him and sexually assaulted him. [115] It is also an aggravating factor for both offenders that they caused serious injuries to F.J. The physical and psychological impact on F.J. is profound. The injuries to F.J. were significant, requiring hospitalization, surgery and reconstructive surgery. The impact, in terms of the ostomy, lasted for almost year. The psychological scars continue. [116] It is also aggravating that Calvin Klemenz and Thomas Matychuk left F.J. and did not seek any medical attention for him. [117] It is also aggravating that Calvin Klemenz and Thomas Matychuk committed this crime in concert with the others, such that the victim here was overcome by several people in his dwelling house. [118] It is also aggravating that Calvin Klemenz and Thomas Matychuk both profited from this crime. They both shared in the proceeds of the sale of F.J.’s property. [119] It is also aggravating that Calvin Klemenz and Thomas Matychuk both have extensive serious criminal records, each spanning some 20 years. Mitigating Circumstances [120] mitigating circumstance for both offenders is that Calvin Klemenz and Thomas Matychuk acted somewhat impulsively when finding F.J. on the premises, that is, the plan was not formulated to break into F.J.’s home and undertake this type of conduct when they started. [121] It is mitigating in respect of Calvin Klemenz that he has community and family support. It is mitigating that he has used his time on remand in positive way. It is mitigating that he is attempting to further his education in order to have skills upon his release. It is mitigating that he is attempting to work towards sobriety. It is mitigating that Calvin Klemenz is taking some bible studies, which would perhaps be form of counselling. It is mitigating that he has been on remand without incident. [122] It is mitigating that Thomas Matychuk has family support. It is mitigating that Thomas Matychuk has taken bible studies while on remand and has met with the Chaplin every week. It is mitigating that Thomas Matychuk has identified his addiction issues and is attempting to work towards sobriety. It is mitigating he has been on remand without incident. CONCLUSION SENTENCE [123] Calvin Klemenz and Thomas Matychuk both have been found guilty by jury of breaking and entering the home of F.J. and committing therein the indictable offence of aggravated sexual assault. As have said earlier, have prepared this decision in relation to both offenders, but sentencing is an individual exercise. will sentence each individual offender with regard to the principles of sentencing, the relevant factors, and the considerations and situation of each individual offender. [124] In sentencing each of Calvin Klemenz and Thomas Matychuk, the circumstances of the offence involved a home invasion and aggravated sexual assault, causing serious bodily harm to a young man. This is an offence which was horrific, almost unimaginable and grossly demeaning. The offence cuts to the core of the most fundamental values that we have as society. Calvin Klemenz and Thomas Matychuk, in committing this offence, committed an invasion of F.J.’s bodily and sexual integrity and security in his own home, place where he is entitled to feel safe. [125] The courts have consistently stressed not only the gravity of offences like this, and the level of moral culpability of the offender, but also the need to denounce and deter criminal conduct of this nature. Sexual assault constitutes substantial and gross violation of the sexual and personal integrity of the victim. Here, it resulted in serious harm to the victim. The gravity of the harm in this case is at the high end of the spectrum, based on the significant consequences which the home invasion and the aggravated sexual assault have had upon F.J., and on society and its values. Calvin Klemenz and Thomas Matychuk each have high degree of responsibility for this offence. The objectives of denunciation, deterrence and protection of the public are the primary objectives in sentencing in this case. [126] Here, the aggravating factors also apply to each offender. The victim here was vulnerable, in that he lived on site removed from other people. The assault took place in relation to dwelling house. The assault was extremely violent and degrading. The assault took place over some period of time and the offenders entered F.J.’s home twice to assault him. The offenders used weapons in the course of the assault. The victim was assaulted anally while he was bound. In the course of the assault, the victim was threatened. The assault had significant impact on the victim and drastically undermined his sense of security, and it continues to haunt him. F.J. suffered long-term physical injury. Both Calvin Klemenz and Thomas Matychuk profited from the circumstances of the offence. The aggravating factors apply to each offender. [127] While have been informed by the sentences in all the cases referred to, do not intend to review them again. am of the view that the sentence for this offence should attract sanction more serious than that imposed in the Morin case, supra, and the Asapace case, supra. The circumstances of the offence here were more aggravating and the injuries more severe and lasting than in Morin and Asapace. In examining the sentences for like offences, am also of the view that the sentence for this offence should attract lesser sanction than those imposed in Osecap, supra, as the personal circumstances and previous criminal record of the offender in that case were more serious and more violent than those of the offenders here. CALVIN KLEMENZ [128] In considering the fit and proper sentence for this offence, have considered the personal circumstances of Calvin Klemenz, and the mitigating circumstances of Calvin Klemenz. Calvin Klemenz has been employed and was productive member of the community at the time of the offence. Calvin Klemenz has been attempting to address his addiction issues. He has undertaken programming and tried to take positive steps while on remand. He has had no institutional infractions. He has family and community support. Calvin Klemenz has an extensive previous criminal record, but not for personal violence. [129] Considering the circumstances of this offence, the gravity of the offence, the level of moral culpability of Calvin Klemenz, the need to denounce and deter criminal conduct, and the need for public protection, the aggravating factors and mitigating factors, the jurisprudence with respect to sentences imposed in like situations, the fundamental objectives of sentencing and the principles of sentencing, am of the view that fit and proper sentence for this offence for Calvin Klemenz is sentence of 12 year’s imprisonment. [130] Section 719 of the Criminal Code provides that in determining the sentence to be imposed on person convicted of an offence, court may take into account any time spent in custody by the person as result of the offence. Calvin Klemenz has been in custody on these offences since April 11, 2012 and it is acknowledged by the offender that he is entitled to maximum of 1:1 credit. As result, will provide him with credit for that time on the basis of one day for each day spent in custody. am giving him credit for 22 months and three weeks for the time spent in custody. [131] The sentence I am imposing is 12 years of imprisonment for breaking and entering F.J.’s house and committing therein the offence of aggravated sexual assault. I give Calvin Klemenz credit of 22 months and three weeks for the time spent in custody, therefore the sentence to be served is 10 years and five weeks in the penitentiary. sentence Calvin Klemenz to sentence of 10 years and five weeks in the penitentiary. THOMAS MATYCHUK [132] In considering fit and proper sentence for this offence, have considered the personal circumstances of Thomas Matychuk, and the mitigating circumstances of Thomas Matychuk. Thomas Matychuk has had some significant challenges in his early life. He is product of an upbringing that caused him to be placed in foster care on numerous occasions. Thomas Matychuk has significant previous criminal record, but like Calvin Klemenz, most convictions do not relate to personal violence. Thomas Matychuk has attempted to make some positive changes in his life. He was previously involved in long-term relationship with Agnes Coldwell. He is attempting to address his addiction issues. It appears he has undertaken the full extent of programming available to him on remand. He has had no institutional infractions. He has family support. [133] Taking into account all the circumstances, including the circumstances of the offence, the gravity of the offence, the level of moral culpability of Thomas Matychuk, the need for denunciation, deterrence and public protection, the aggravating factors and the mitigating factors of Thomas Matychuk, the jurisprudence with respect to sentences imposed in like situations, the fundamental objectives of sentencing and principles of sentencing, am of the view that fit and proper sentence for this offence is sentence of 12 years imprisonment for Thomas Matychuk [134] In relation to Thomas Matychuk, defence counsel suggests that Mr. Matychuk should be given one and one-half day’s credit for each day spent in custody since July 17, 2012. Section 719(3) of the Criminal Code provides that in determining the sentence to be imposed on person convicted of an offence, court may take into account any time spent in custody by the person as result of the offence, but the court shall limit the credit for the time to maximum of one day for each day spent in custody. However, s. 719 (3.1) states that if the circumstances justify it, the maximum is one and one-half days for each day spent in custody prior to sentence, unless the reason for detaining the person in custody was stated on the record under s. 515(9.1) or the person was detained in custody under ss. 524(4) or (8). [135] Defence counsel suggests that Thomas Matychuk is entitled to one and one-half day’s credit for each day spent in custody. [136] The determination of the potential credit to be applied for the time in custody was discussed by Justice Gunn in the recent case of R. v. Taniskishayinew, 2013 SKQB 416 (CanLII), [2013] S.J. No. 716 (QL) at paras. 29 The potential credit to be applied for the time in custody turns on the interpretation of s. 719 (3) and s. 719(3.1) of the Criminal Code. Section of the Prisons and Reformatories Act, R.S.C. 1985, c. P‑20 also has some relevance. The sections of the Criminal Code provide as follows: 719.(3) In determining the sentence to be imposed on person convicted of an offence, court may take into account any time spent in custody by the person as result of the offence but the court shall limit any credit for that time to maximum of one day for each day spent in custody. 719.(3.1) Despite subsection (3), if the circumstances justify it, the maximum is one and one‑half days for each day spent in custody unless the reason for detaining the person in custody was stated in the record under subsection 515 (9.1) or the person was detained in custody under subsection 524(4) or (8). 30 Pursuant to s. 719(3.1), any opportunity for enhanced pre‑sentence custody credit would be unavailable for those offenders whose circumstances are caught by s. 515(9.1) or 524(4) or 524(8). These would include any accused who justice has ordered detained pending his or her trial "primarily because of his previous conviction" (515(9.1)). And it would include any accused persons who were released on bail and then subsequently ordered to be detained pending their trials as result of justice finding that they were alleged to have committed fresh indictable offence or had contravened or were about to contravene the terms of their original release orders. (ss. 524(4) and 524(8)). It is clear that ss. 515(9.1) and 524(4) or 524(8) are not applicable to Mr. Taniskishayinew. Section 719 was part of Bill C‑25, the Truth in Sentencing Act, S.C. 2009, c. 29 (the "Act") introduced by Parliament in March of 2009. The Act applies to persons charged with criminal offence after February 22, 2010, the day on which the Act came into force. The Act introduced four substantive amendments to the Criminal Code, which are designed to limit the amount of credit that may be assigned on sentencing to pre‑trial and pre‑sentence custody and to increase the transparency of sentencing decisions. (See: para. 2, R. v. Summers, 2013 ONCA 147 (CanLII), 297 C.C.C. (3d) 166). [137] am satisfied that ss. 515(9.1) to 524(4) or 524(8) are not applicable to Thomas Matychuk. [138] Section 719(3.1), which provides that if the circumstances justify it, an offender may receive one and one-half days credit for pre-trial custody, has been the subject of some conflicting decisions across the country. These include the decision of the Ontario Court of Appeal in R. v. Summers, 2013 ONCA 147 (CanLII), 114 O.R. (3d) 641; R. v. Carvery, 2012 NSCA 107 (CanLII), 321 N.S.R. (2d) 321 (leave to appeal to the Supreme Court of Canada granted on April 11, 2013); R. v. Bradbury, 2013 BCCA 280 (CanLII), 298 C.C.C. (3d) 31; R. v. Stonefish, 2012 MBCA 116 (CanLII), 288 Man.R. (2d) 103. The issue in those cases was whether s. 719(3.1) contemplates that only exceptional circumstances can justify enhanced credit and that remand offender’s loss of remission and parole eligibility during pre-sentence custody does not qualify as an exceptional circumstance within the meaning of s. 719(3.1). As noted by Justice Gunn in the Taniskishayinew case, s. 719(3.1) is silent as to the situation that will justify enhanced credit for pre-sentence custody. We will, within the near future, have the benefit of the Supreme Court of Canada decision on appeal from the Nova Scotia Court of Appeal in R. v. Carvery, supra. There are no decisions to my knowledge on this issue by the Saskatchewan Court of Appeal. [139] agree with the decisions taken by the Ontario Court of Appeal, Manitoba Court of Appeal and Nova Scotia Court of Appeal on the issue and conclude that s. 719(3.1) does not preclude sentencing court from considering loss of remission and eligibility for parole as circumstance which might be taken into consideration by the court in determining what credit to be applied for pre-sentence custody to maximum of one and one-half days for each day spent in custody. [140] The task before me then is to assess the information provided to determine whether Thomas Matychuk is entitled to any enhanced credit. [141] Thomas Matychuk bears the onus of proof of seeking to depart from the established practice of 1:1 credit. Thomas Matychuk must demonstrate by credible information or evidence that enhanced credit ought to be applied in his case. [142] have received some information setting out the general conditions of Thomas Matychuk’s pre-trial incarceration. The only evidence on this issue was that Thomas Matychuk took programming while on remand. It does appear that some was available and he took advantage of what was there. It does not appear that this matter was delayed unduly in proceeding to trial or that the Crown was responsible for any of the delay. That is the only evidence before me. [143] On the whole, am not satisfied that there are circumstances here, on the information before me, that justify any credit for time spent in custody beyond one day for each day spent in custody. There is nothing in the circumstances here which satisfy me such increased credit should be given. [144] Thomas Matychuk was arrested on this charge on July 17, 2012 so am prepared to give him credit of 19 months and two weeks. [145] The sentence I am imposing with respect to Thomas Matychuk is 12 years of imprisonment for breaking and entering F.J.’s house and committing therein the offence of aggravated sexual assault. I give Thomas Matychuk credit of 19 months and two weeks for the time spent in custody. Therefore, the sentence to be served is 10 years and four and one-half months in the penitentiary. sentence Thomas Matychuk to sentence of 10 years and four and one-half months in penitentiary. ANCILLARY ORDERS [146] The Crown has asked that make an order under s. 490.012 of the Criminal Code requiring Calvin Klemenz and Thomas Matychuk to comply with the Sex Offender Information Registration Act, S.C. 2004, c.10. This section, including subsections 490.012(1) and (4), make it clear: if an offender is convicted of designated offence such as sexual assault contrary to s. 271(1), the sentencing judge “shall” make such order unless the offender “has established” to the satisfaction of the judge that the impact of such an order upon the offender would be grossly disproportionate to the public interest in protecting society. The burden is upon the offender seeking an exemption to establish that the impact of an order would be grossly disproportionate to the public interest in issue, and that in the absence of any evidence to that effect, the presumption of the section applies and the order will be made. In this instance, there was no such evidence and indeed neither Calvin Klemenz nor Thomas Matychuk sought an exemption. There will be an order under s. 490.012 requiring Calvin Klemenz and Thomas Matychuk each to comply with the Sex Offender Information Registration Act, for the duration of 20 years under s. 490.013(2)(b) of the Criminal Code. [147] The Crown has also sought an order pursuant to s. 487.051 for the taking of DNA samples. Pursuant to s. 487.051(2), the court shall make such an order unless the offender has established that the impact of such an order on their privacy and security would be grossly disproportionate to the public interest. Calvin Klemenz and Thomas Matychuk did not seek such an exemption. There will be an order pursuant to s. 487.051 authorizing the taking of the number of samples of bodily substances that is reasonably required for the purpose of forensic DNA from Calvin Klemenz and from Thomas Matychuk in accordance with the section. [148] There will also be an order pursuant to s. 109 of the Criminal Code prohibiting each of Calvin Klemenz and Thomas Matychuk from possessing any firearm, cross-bow, prohibited weapon, restricted weapon, prohibited device, ammunition, prohibited ammunition and explosive substance for period of ten (10) years. C. L. DAWSON
Criminal Law – Home Invasion – Sentencing HELD: The Court sentenced Klemenz to 12 years imprisonment for breaking and entering and committing the offence of aggravated sexual assault. He was given credit for 22 months spent in custody. Matychuk was sentenced to 12 years in prison but was given credit for time in custody on a 1:1 basis because the Court had not found any circumstances to justify any greater amount of credit. Matychuk’s credit was for 19 months. The sentences were based on the circumstances of the offence: a home invasion and inflicting serious bodily harm on a young victim. The assault was violent and degrading and took place over a period of time. Weapons were used while the victim was bound and sexually assaulted and threatened.