IN THE PROVINCIAL COURT OF NOVA SCOTIA
R. v. Marriott, 2015 NSPC 5
Date: February 6, 2015
Docket: 2652344, 2652350, 2652352, 2652358, 2652364, 2652372, 2652376, 2652377, 2652531
Registry: Halifax
BETWEEN:
HER MAJESTY THE QUEEN
v.
RYAN MARRIOTT and JASON MARRIOTT
SENTENCING DECISION
BEFORE THE HONOURABLE JUDGE ANNE S. DERRICK
HEARD: January 16, 2015
DECISION: February 6, 2015
CHARGES: sections 348(1)(b) of the Criminal Code x 5 (Ryan Marriott); 333.1 x 2 (Ryan Marriott); and section 348(1)(b) x 2 (Jason Marriott)
COUNSEL: Christine Driscoll, for the Crown
Brian Church, Q.C., for Ryan Marriott
Trevor McGuigan, for Jason Marriott
By the Court:
Introduction
[1] Ryan Marriott and Jason Marriott have pleaded guilty to a number of property-related offences, the majority of which were breaks and enters into homes during the period of March 7 and April 26, 2013. What makes this case unusual is that Ryan and Jason Marriott have no criminal records and were by all appearances, model citizens. This makes sentencing them more challenging than if their crimes emerged from a history of offending.
[2] Ryan and Jason Marriott are brothers. Since their arrests they have been living with their mother on strict release conditions including house arrest.
[3] The offences committed by Ryan and Jason will net them each a prison sentence. The nature and extent of their offending drives this result and it has been acknowledged by Defence counsel that penitentiary sentences are inevitable in this case. The fundamental issue for me to decide is - how long should these sentences be?
[4] The Crown has submitted that Ryan Marriott should be sentenced to 4.5 years due to his greater number of offences, and Jason Marriott to 4 years. It is acknowledged in relation to the residential break-ins, Jason was a driver and took a share of the stolen property, but did not enter the homes. Mr. Church, representing Ryan, submitted that a 2 – 3 year sentence would be appropriate. Mr. McGuigan, for Jason, has argued that 2 years imprisonment is the fit and proper sentence for his client.
[5] In these reasons I will be discussing the offences to which Ryan and Jason have pleaded guilty, the effect on the victims of the break-ins and thefts, the personal circumstances of these young men as described by the pre-sentence report and various letters of support, the mitigating and aggravating factors in this case and the applicable principles of sentencing.
The Guilty Pleas
[6] Ryan Marriott has pleaded guilty to 7 charges – Counts 1, 3, 4, 6, 8, 11 and 13 which was amended; Jason Marriott has pleaded guilty to 2 charges – Counts 13, amended and Count 69. Count 13 that they have both pleaded guilty to was amended to indicate between-dates of March 7 to April 26, 2013 and includes 28 residential break-ins, although Ms. Driscoll acknowledged during her review of the Crown’s facts that two of the B & E’s did not involve Jason.
[7] Jason has pleaded guilty to a separate break and enter into a dwelling house in Hackett’s Cove on April 25, 2013. It was at this location that Ryan and Jason were caught and arrested.
[8] In addition to the March through April residential break-ins, Ryan has also pleaded guilty to offences he committed in November 2012 and March 2013 – two offences on November 2, 2013, three offences on November 9, 2013, and one offence on March 6, 2013. I will deal with the facts of these offences first and then move on to the break-ins.
The Facts of Ryan Marriott’s November 2012 and March 2013 Offences
[9] On November 2, Ryan Marriott, with an accomplice, Mitchell Jollimore, broke into and stole from a Needs convenience store on Chain Lake Drive in Halifax. Prior to the break-in, they had stolen a Volkswagon Tiguan worth over $5000.
[10] CCTV surveillance footage seized by police showed that the Needs convenience store break-in was accomplished by smashing out the front doors with the Tiguan. Two masked men entered the store and, in just over a minute, stole cigarettes, cigars, and chewing tobacco.
[11] The Tiguan was recovered, although it had sustained rear-end damage. The merchandise was not recovered.
[12] Ryan Marriott and Mr. Jollimore hit the same Needs store again on November 9. This time a hammer was used to get through the front door. It was another smash and grab. The video surveillance showed three masked men in the store for just over a minute, long enough to steal cigarettes, cigars, chewing tobacco, and lighters.
[13] November 9 was a busy night for Ryan: he also did a smash and grab at a convenience store on St. Margaret’s Bay Road in Halifax. Cigarettes were again the target.
[14] Ryan Marriott was involved in the theft of a motor vehicle - a Chrysler Cirrus – on November 9 as well. Police located the vehicle with its ignition ripped out at a local Legion in the same general area.
[15] On March 6, after some planning, Ryan Marriott and Mitchell Jollimore broke into and stole from Alexandra’s Pizza in Spryfield. The police investigation determined that the perpetrators had gained entry by breaking the glass door and then entering the correct alarm code, disarming the system. The laptop that stored the eatery’s surveillance footage, a video camera, and $600 in cash were taken.
[16] Texts seized by police from the cell phones of Mitchell Jollimore and Ryan Marriott revealed that Jollimore had obtained the alarm code for the pizza shop from his girlfriend. Jollimore and Ryan planned the break-in over texts, with Ryan asking Jollimore: “Ya I m down. How much cash are they packing tho”. The alarm was the subject of some discussion and Ryan asked Jollimore to get his girlfriend, who worked at the pizza shop, to find out “what make and brand the alarm is”. Ryan mused about hiding in the shop, either in a washroom or a closet, to avoid the messy problem of having to break in. As he said in a text to Jollimore: “…Be sick to walk out. Shut off alarm. Let you in and clean them”.
[17] Each of these break-ins – the Needs Store on November 2 and November 9, the St. Margaret’s Bay Road store on November 9, and Alexandra’s Pizza on March 6, show planning and preparation.
[18] Indeed, none of the offences committed by Ryan and Jason were impulsive. They were all carefully thought out and executed.
The Essential Facts of the Residential Break-Ins between March 7 and April 26, 2013
[19] An overview of the police investigation into the residential break-ins that are the subject of this sentencing neatly encapsulates the essential facts:
In March and April 2013, numerous Break and Enters were being reported from various communities within Lunenburg County, Colchester County, as well as several outlying communities within the Halifax Regional Municipality. Due to several commonalities noted during the respective investigations, investigators quickly suspected that the same persons were responsible for many of these Break and Enters. These commonalities included the use of pry tools to gain access through windows, all happening during the day, similar footwear impressions, similar items targeted, and the removal of pillowcases from the residence to transport the stolen property.
On April 25, 2013, a break and enter in progress was reported from the Hackett’s Cove area. Ryan Marriott, Jason Marriott and Mitchell Jollimore were all arrested for break and enter at this time. Property stolen from the break and enters in Lunenburg and Colchester Counties were located in Ryan Marriott’s vehicle upon their arrest. At the time of their arrest each of their cellular telephones was seized. A cursory search of their cell phones showed text message conversations between each of them indicating their involvement in other break and enters in other areas of the Province…
…
The investigation has led investigators to believe that Ryan Marriott, Jason Marriott and Mitchell Jollimore have planned and committed approximately 30 break and enters throughout the province. The investigation has also shown that the trio, who dubbed themselves “The Pillowcase Bandits”, used physical surveillance combined with the use of online applications such as MLS and Google maps and Streetview to identify potential targets…
[The group] purchased lock pick sets from the Internet. They researched and purchased bump keys. They researched and were aware of the types of radios and frequencies used by the Halifax Regional Police and the RCMP. They discussed the purchase of a scanner in order to thwart any risks of apprehension during a Break and Enter. They stole license plates and switched these on their vehicles periodically to avoid detection…(Exhibit 5, Overview of Investigation)
[20] The police investigation determined that gold stolen during the break-ins was sold for cash to a business in Halifax that immediately melts down precious metals, making them untraceable, and keeps no records. Other items such as electronics or laptops were sold to friends or associates or through online classified sites such as Kijiji. Items of no material value were unceremoniously discarded.
[21] All these facts, and the specific facts the Crown recited in relation to individual break-ins, have been admitted into the record and accepted by Ryan and Jason as accurate.
[22] The residential break-ins which Ryan and Jason have admitted to occurred on March 8 in Hubley; between March 12 and March 15 in Dartmouth; March 21 in Grand Desert and Conrod Settlement – two breaks and enters that day; March 27 in Marriott’s Cove, Lapland, and Newcombeville – three breaks and enters that day; April 4 in Conrod Settlement; April 5 in Brookfield at two locations in each place, and Fort Ellis – five breaks and enters that day; April 8 in Bakers Settlement at two locations, and Upper Branch –three breaks and enters that day; April 10 in Belnan and Millbrook – two breaks and enters that day; April 18 in East Uniacke; April 19 in Hubley; April 22 in West Chezzetcook; April 23 in Bakers Settlement, Chelsea, Hemford, and Scarsdale –four breaks and enters that day; sometime between April 23 and 24 in Waterloo; and April 24 in Brookfield at two locations. There were also the Hackett’s Cove break-ins on April 25.
[23] I will note that when Ms. Driscoll was reciting the facts for these break-ins for the record, she concluded the evidence did not support a finding that Jason Marriott had been involved with the April 10 break-in at a home in Millbrook or the break and enter into a home in Hubley on April 19.
The Stolen Property
[24] The residential break-ins were very lucrative. Thousands of dollars’ worth of expensive jewelry and electronics were stolen. Other items that were taken included: cell phones, firearms, cameras, a mink coat, significant amounts of cash (for example, the Conrod Settlement break-in on April 4 netted $4000 from a safe and the Belnan break-in on April 10 netted electronics and $5000 in cash), silverware, and rare coins.
[25] Many items of sentimental value got swept up in the break-ins. These items were of incalculable value to the owners.
Victim Impact Statements
[26] The facts provided by the Crown on the residential break-ins identify 28 victims: seven of these victims prepared victim impact statements. They are all victims of break-ins to which both Ryan and Jason have pleaded guilty. I have no doubt that their statements about the impact the break-ins have had on them reflect the way all the victims feel. Raw feelings of loss predominate – loss not only of valuable property but more significantly, the heartbreak of losing irreplaceable treasures, momentos, and memories that were preserved in photographs and videos. There is also the terrible loss of comfort, trust, and confidence that accompanies the break-in of a home.
[27] The victims reveal much pain and anguish in their victim impact statements:
• Being nervous, frightened, and feeling unsafe in their homes;
• Loss of trust and feeling changed as a person in a negative way by the experience;
• A sense of violation and loss of privacy as a result of personal belongings being rifled through;
• Feeling angry;
• Being unable to sleep as well as before;
• Lost time at work;
• Witnessing the upset and distress experienced by other affected family members;
• Distress over losing items that were acquired by hard work and saving;
• Direct financial loss;
• Loss of cherished personal items, some of which victims collected over decades or were gifts, and items with sentimental value - CD’s with photos of children growing up, baby albums, items that belonged to a now-deceased mother.
[28] As one victim put it: “I know it was only “stuff and no one was killed, but now we have nothing to show for a lifetime of things that would be keepsakes and heirlooms for our children…”
[29] Another victim grieves: “The personal loss of these items…from loved ones, alive and deceased and will no longer be passed down through generations.”
The Pre-sentence Reports and Letters of Support
[30] Ryan Marriott is 30 years old. At the relevant times he was 28, or in November 2012, almost 28. As I indicated at the start of these reasons he has no criminal record. By the time Ryan was a teenager, his parents had divorced and while he, Jason, and their younger sister lived with their mother, according to his pre-sentence report, Ryan had regular access with their father. While growing up, Ryan was involved in sports, community activities, and his church.
[31] Ryan completed three years of a commerce degree at Saint Mary’s University. He left university to work. He told the author of his pre-sentence report that he would like to return to university to do a degree in engineering.
[32] Ryan is presently employed at OK Tire in Bayers’ Lake as a tire service tech. He has held this job for approximately a year and is a valued employee. His employer described Ryan to the author of the pre-sentence report as interacting well with staff and customers, “he is one of the best I’ve had.” He is assured of a job once his involvement with the criminal justice system is over. Ryan’s employer has known the family for years and described Ryan’s offences as “entirely out of character.”
[33] In a separate letter of support, Ryan’s employer had the following to say: “Ryan has been an exemplary employee, he shows up every day on time with a very positive attitude and takes extra care in doing his duties, which are always done with skill and professionalism. Ryan will be a tough employee to replace, Ryan has earned the trust and respect of myself as well as all of his co-workers.”
[34] It appears from the pre-sentence report that Ryan has had a solid history of gainful employment.
[35] Jason is 27 years old and at the relevant times was 25. He has his Grade 12, and also, no criminal record. He had no contact with his father for a long time after his parents divorced but they were reunited six years ago when Jason became a father himself.
[36] Jason graduated from high school with honours. He then enrolled in a Bachelor of Arts programme intending to major in English. His university aspirations ended when his girlfriend became pregnant and he got a job. In any event, he told the author of the pre-sentence report: “…the school course direction wasn’t for me.” Like his brother he was an athlete and involved with his community and church while growing up.
[37] For the past year, Jason has worked as a labourer. His employer had very positive comments for the author of the pre-sentence report, describing Jason as, “…reliable, great to have around, gets along with everyone…we look forward to having him around for many years to come.” In a separate letter provided for this sentencing, Jason’s employer describes him as “trustworthy”, showing “great respect” for tenants when he has worked in their homes and “responsibility for their property.” She concludes by saying: “He is always on time, ready and eager to work…is willing to do any task at hand without hesitation, negativity or complaint. He has been a fun and joyful personality to be around, and always has a smile on his face…”
[38] Jason is described as an excellent father to his six-year old son who stays with him on weekends. In her letter of support for this sentencing, Jason’s mother says he is “a wonderful, loving father” who is responsible and devoted. Ryan has played an important role as a significantly involved uncle to Jason’s son.
[39] Ryan’s and Jason’s mother was completely shocked by her sons’ involvement with these crimes. It has been hard for her to believe. She described her boys in her letter of support – kind, dependable, neighbourly, community-spirited, enthusiastic about being part of a large family, contributing members of society. Both parents remain very supportive of their beloved sons.
[40] Ryan’s and Jason’s mother includes these observations in her letter of support:
Since charges were laid in July 2013, my sons have obeyed their bail conditions despite the hardships these conditions imposed. I have seen personal growth in both of them as they have come to terms with their conduct and how it has impacted those they love and the community. In pleading guilty, they have accepted responsibility for their actions.
[41] In addition to Ryan’s and Jason’s mother, and their respective employers, others have provided very positive comments about these young men. A close family friend describes a very positive relationship between Ryan and Jason and their mother. The friend has experienced Ryan and Jason as warm, humourous, and responsible. I have no reason to doubt that, as the support letters describe, Ryan and Jason have earned the love, respect, and support being expressed by their family, friends, and employers. It is readily apparent that, as their aunt has said in a letter she provided, Ryan and Jason “still have so much to offer to society and to this family.”
[42] The pre-sentence report and all the letters of support make Ryan’s and Jason’s criminal activities very hard to fathom. A sentencing judge is not a psychologist. All I can do is indicate what Ryan and Jason offer as an explanation for their crimes.
The Role of Gambling in Ryan’s and Jason’s Crimes
[43] Both Ryan and Jason say they were in the grips of a gambling addiction when they committed their crimes. This comes out in their pre-sentence reports. Ryan told the author of the pre-sentence report that he slid into crime because of a “serious gambling issue” that emerged from playing blackjack at Casino Nova Scotia. At first his gambling was manageable and then he became addicted and “eventually spent his savings and began losing entire paycheques.” His criminal activities “snowballed.”
[44] Ryan’s mother told the author of the pre-sentence report that she had suspected her son of having a gambling problem. He was renting a property from her and, despite working at two jobs, was unable to pay the rent. She tried talking to him at the time but says she had no understanding of “the severity of the gambling issue.”
[45] In early 2014, Ryan began seeing an addiction therapist. Elizabeth Stephen, on a regular basis. He voluntarily excluded himself from Casino Nova Scotia and had his photograph put on file there.
[46] Ms. Stephen was interviewed for Ryan’s pre-sentence report. She is a therapist with Capital Health Addictions and Mental Health. Since she began seeing Ryan in March 2014 they have met for six therapy sessions. It is Ms. Stephen’s opinion that Ryan’s gambling began when he was approximately 19 years old and became a serious problem once he started frequenting Casino Nova Scotia as a young adult. Ms. Stephen views Ryan’s criminal activities to have been a result of an impairment to his cognitive abilities caused by gambling. She says that “growing research” on the issue identifies the cognitive impairments caused by gambling as similar to the impairment effects of drugs and alcohol. She recommends that Ryan continue to attend a relapse programme to avoid becoming re-involved in gambling.
[47] Jason informed the author of his pre-sentence report that he developed a gambling addiction in December 2012. He too has had himself excluded from Casino Nova Scotia. He is in therapy with Elizabeth Stephen as well, meeting with her regularly over the past eight months. He has quit gambling “cold turkey” as recommended by Ms. Stephen and told the author of his pre-sentence report that Ms. Stephen has helped him “tremendously.” He is reported in the pre-sentence report as saying his motivation for his crimes was to get money for gambling.
Remorse
[48] By all accounts, Ryan and Jason are deeply remorseful. This is reflected in their comments in their pre-sentence reports and is noted in letters of support supplied by family members. Both Ryan and Jason have taken full responsibility for their choices. In their statements to the court, they each expressed their regret for having caused so much pain to their victims and to their own families and apologized for what they have done. Ryan Marriott said in his statement that “It shames me that I sit here today admitting guilt to such acts. Guilt and regrets will stay with me forever.” Jason Marriott acknowledged he had “forever changed” the lives of his victims, and said: “Words can’t describe or fix what has been done, however, I still offer my most sincere apology.” Ryan and Jason have described being profoundly affected by the victim impact statements but seem to have lacked the imagination to understand, when they were committing their offences, the damage their brazen acts would do to the victims. It is understandable that anyone, myself included, will have difficulty grasping how such deliberate, well-planned crimes could have been accompanied by such a profound lack of insight.
Mitigating Factors
[49] There are a number of mitigating factors that apply to Ryan and Jason equally. Neither of them has a criminal record. There is evidence of them each having many positive qualities. They both have strong prospects for rehabilitation and solid support from their family and their current employers. They have taken concrete steps to address their problem gambling. They have been wholly compliant with their stringent release conditions. They have pleaded guilty and taken full responsibility for their crimes.
[50] Two other mitigating factors – their ages and, in Ryan’s case, his expression of remorse, merit comment. Ryan and Jason should be regarded as still youthful offenders. But, having said that, they were not at the entry point of youthfulness. They showed maturity in other aspects of their lives and their accountability cannot be mitigated substantially because of their ages. And furthermore, they did not have to bring themselves up as it were, as so many young men embroiled in the justice system have had to, often with predictably unhappy results. Ryan and Jason progressed into and through their 20’s with strong family support and the advantages a pro-social family environment imparts.
[51] A comment about remorse is also appropriate. While I accept that Ryan and Jason are genuinely remorseful, I found in Ryan’s statement to the court indications of self-centredness and self-pity. Perhaps it is fairest to observe that even at age 30, he still has growing up to do. Instead of feeling sorry for himself that his bail conditions were inconveniently strict, he should appreciate that he has had his liberty for the last nearly 20 months with all the benefits that has afforded him, including the ability to show that he is committed to his rehabilitation. It would be a great mistake for either of these young men to lay the blame for their current difficulties anywhere but at their own feet. Perhaps if they had sought help for their gambling problems much earlier – and it is not as though they had nowhere to turn – all of the heartache they have caused to themselves and others could have been avoided.
[52] A final word about mitigating factors in this case: I am prepared to accept that problem gambling played a role in why Ryan and Jason stepped so far out of character and became, for a time, dedicated criminals. The Crown has not presented anything that entirely refutes the gambling problem claim and I have no basis to dismiss it out of hand despite the relatively thin evidence about it. It is a fact that the cell-phone text messages do not make any mention of gambling or desperation but there is some independent confirmation of gambling – a journal seized by police from the car Ryan was driving when he and Jason were arrested contained “some writing” that indicated Ryan was “involved in sports betting (gambling).” (Exhibit 9, Police General Occurrence Hardcopy Report) Having said that, while I am treating the gambling issue as something of an explanation for Ryan’s and Jason’s crimes, it does not mitigate them. The offences are too serious and the offending too protracted and deliberate.
Aggravating Factors
[53] The aggravating factors in this case are what I have just mentioned: the serious nature of Ryan’s and Jason’s offences, in particular the residential break-ins, and the protracted and calculated nature of their offending.
[54] The residential break-ins occurred over a couple of months – March and April 2013. They were brought to an end, not because either Ryan or Jason stepped back from what they were doing, but because they were caught red-handed. The facts indicate to me a bravado, a confidence that they were smart and skilled enough to stay ahead of the police. The texts obtained by police confirm that Ryan and Jason took a methodical, strategic approach to their criminal enterprise and were focused and motivated throughout.
[55] As I noted earlier, the text exchanges reveal no signs of desperation as one might expect to see where an addiction is in play. A question that I cannot answer, percolated through my mind as I read the texts – were Ryan and Jason intoxicated by gambling or intoxicated by thieving? But I am prepared to accept that the texts do not tell the full story and that gambling played a role in why Ryan and Jason persisted in such anti-social behaviour.
Examples from the Text Exchanges
[56] The texts disclose an organized approach to the break-ins and the booty. The disposal of the burglarized goods was as carefully thought out as the burglaries themselves: referring to the theft of some laptops, Ryan told Jason “…This is where we need an electronics connection” (April 6, 10:49 p.m. text)
[57] But flying below the radar was important. As Ryan said to Jason on March 9 (8:29 a.m. text) “No one can identify a coin. Rings want them melted”. Ryan later said: “Hate the fact they cut a cheque” (12:27 p.m. text) Jason reassured him: “Went to unknown bank. No questions asked. No serial number cannot b traced”. (12:28 p.m. text) “In the clear” he told his brother. (12:29 p.m. text)
[58] These texts were exchanged after the March 8 break-in to a home in Hubley where $15,000 worth of jewelry and gold coins were among the items stolen.
[59] Generally the tone was ebullient where the “take” was significant. After the break-in at Marriott’s Cove which netted $600 of American money amongst other things, Ryan texted Jason: “We have American cash for our trip now Lol” (March 28, 12:17 p.m. text) They even romanticized themselves with a monniker: on April 6, after another successful haul, Jason texted Ryan to say: “Pillowcase bandits strike again Lol” (5:11 p.m. text)
[60] The burglarizing was routinely discussed in strategic terms as a text exchange between Ryan and Jason reveals. Speed was an issue. Ryan noted: “Master takes 2 people and takes long” (March 28, 10:54 a.m. text) And being out of sight was a bonus. Jason liked Bridgewater for this reason, telling his brother: “…Loved the woods down there too” (April 7, 11:14 p.m. text)
[61] The “pillowcase bandits” were opportunistic. Ryan learned from a co-worker that the co-worker and his two next door neighbours were going to Cuba for a week. Ryan didn’t want to “hit” the co-worker’s home but suggested breaking into the neighbours’ homes. (March 11, 11:47 a.m. – 11:51 a.m. texts with Mitchell Jollimore) Later Ryan texted Jason to say he was doing a reconnaissance of the properties that night. He told him: “Would rather hit his neighbour. Like the guy” (12:12 p.m. text) Subsequent texts involved sorting through the best option for determining if anyone was home. As Ryan said to Jason: “…No answer we go through backyard and hit him”. (March 12, 8:59 p.m. text)
[62] Ultimately the co-worker was not spared. Mr. Church has submitted this indicates how desperate Ryan was for money to feed his gambling addiction.
[63] There is no discussion in the texts that suggests desperation. The text “talk” was all about the haul. There was a certain callousness about the co-worker, even though Ryan expressed regret to Jason about the theft of his car key fob which was not covered by insurance. “Only thing I wish I didn t do was take his key 600 no insurance.” (March 22, 11:23 a.m. text) Otherwise Ryan remarked that the co-worker was getting $10,000 from his insurance company. He had no empathy for the loss of sentimental items, telling Jason: “He said minus a few sentimental things. Some ring her mom gave her and something else 10 grand is sick. I almost wanna do a claim myself” (March 22, 11:29 a.m. text)
[64] Travelling to more rural locations for break-ins was attractive because the target houses were vulnerable. Ryan told Jason about Bridgewater: “Some sick places in bride water Houses on one side And woods” (March 26, 12:29 p.m. text) The plan was for someone to knock and see if anyone was home with an accomplice doing the driving. This was explained by Ryan in a text to a confederate: “No same person does both We are gonna be wearing robbing clothes we scout a house if no alarm and good cover from trees we pull into driveway…” (March 26, 3:55 p.m. text) Later, Ryan and Jason exchanged texts about scouting different streets for target homes while they were in the Bridgewater area. They tried to assess their capacity. Ryan told Jason: “Could even do 3 in morning if we find decent spots” (March 26, 10:27 p.m. text)
[65] But there was also discussion about not being too ambitious. When on April 7, Ryan told Jason that “Last day was brutal”, Jason responded with some advice: “Yea that’s y 6 is kinda dumb. Ppl end up back n call. Like startin at ten. Finishin at 1. Be gone.” (April 7, 11:31 and 11:32 texts)
[66] The benefits of using Streetview was another theme. As Ryan told Jason on April 7, “…Actually the best robbing software ever. For free” (11:39 p.m. text) Prospective targets were rated for their burglary appeal: Ryan texted Jason “Nice houses. No neighbours No alarm stickers” (April 18, 5:45 p.m. text)
[67] On April 22, Jason and Mitchell Jollimore had a nasty surprise. A neighbour spotted them leaving a house. They were chased and had to resort to driving at high speeds, and dangerously, to get away. Jason later texted Ryan to tell him what had happened: “Had to pass ppl double lane…Chased us for miles. Doin craaaazy speeds…passin ppl doin 140 double lane” (April 22, 11:48 a.m., 12:06 p.m., 12:08 p.m. texts) Despite this close call, more break-ins were undertaken, in the Bridgewater area on April 23, in Brookfield on April 24, and in Hackett’s Cove on April 25. A safe stolen from a Brookfield home resisted being opened. Jason, ever resourceful, bought a grinder from Canadian Tire. (April 24, 2:03 p.m.)
[68] The roof fell in on April 25. Ryan, Jason, and Mitchell Jollimore were arrested at the scene of a break and enter in Hackett’s Cove. A range of stolen items from several break-ins were found, including in pillowcases in nearby woods. Police also located clothes and tools consistent with a break-in operation. A pair of 2-way radios was found discarded. It is apparent from the police report (Exhibit 9, HRM Police General Occurrence Hardcopy) that the “pillowcase bandits” had ditched numerous items hastily when spotted by a homeowner who had inconveniently returned while they were still in the area.
Determining a Just and Appropriate Sentence
[69] There is no dispute that denunciation and deterrence are to be emphasized in break and enter cases. This has been reflected by our Court of Appeal’s bench mark of three years’ imprisonment - referred to in the 1986 decision of R. v. Zong ([1986] N.S.J. No. 207) - which has continued to find favour in more recent Court of Appeal decisions. (R. v. McAllister, [2008] N.S.J. No. 479, paragraph 38 and R. Adams, [2010] N.S.J. No. 275, paragraph 29) In Zong, the Court focused on “the serious nature of [the] offence and the underlying danger to the public of the invasion of private property by the unwarranted break and enter.” The Court viewed the sentencing judge as having the discretion to move away from the benchmark “as the circumstances in the judgment of the trial judge warrant.”
[70] The Court in McAllister reiterated this principle, noting that the “guideline” of three years can be “adjusted for particular circumstances.” (paragraph 40) The “particular circumstances” will include the mitigating or aggravating factors present in a case.
[71] Both the Crown and counsel for Ryan and Jason have commented on the fact that there appears to be no precedent for the facts in this case: the perpetration of such a high number of methodically-planned break-ins by young men with no criminal histories.
[72] The unusual features of this case notwithstanding, I must calibrate the various sentencing objectives articulated in section 718 of the Criminal Code – denunciation, general and specific deterrence, separation from society where necessary, rehabilitation, reparations, and the promotion of a sense of responsibility. My task is explained in the Court of Appeal decision of R. v. McKay, [1993] N.S.J. No. 250, where it was said:
In determining an appropriate sentence in circumstances such as exist here, the trial judge must consider, in addition to the facts related to the commission of the offence, that which is likely to deter the offender from repeating this offence another time, how best the public can be protected from an unwarranted invasion of their property by this and other like-minded offenders, and how the personal circumstances of the offender can best be addressed. The difficult judicial function involved in sentencing obliges the trial judge to fashion a sentence that displays an acknowledgment and concern for all these factors. (paragraph 18)
[73] These principles have received robust endorsement by the Supreme Court of Canada. Sentencing has been explicitly recognized as a "profoundly subjective process." (R. v. Shropshire, [1995] S.C.J. No. 52, paragraph 46) Determining "a just and appropriate sentence is a delicate art" which requires the careful balancing of "the societal goals of sentencing against the moral blameworthiness of the offender and the circumstances of the offence..." (R. v. M. (C.A.), [1996] S.C.J. No. 28, paragraph 91) An appropriate sentence cannot be determined in isolation. Regard must be had for all the circumstances of the offence and the offender. (R. v. Nasogaluak, [2010] 1 S.C.R. 206, paragraph 44) Sentencing, as the Supreme Court of Canada has recognized, is a "profoundly contextual" process in which the sentencing judge has broad discretion. (R. v. L.M., [2008] S.C.J. No. 31, paragraph 15)
[74] I have described in some detail the offences committed by Ryan and Jason and their aggravating features. Every break-in represented a devastating violation of the peace of mind and sense of security people are entitled to feel in their homes. The break-ins changed the lives of the victims. And each time a break-in was undertaken there was the potential for a confrontation with unpredictable results. Ryan’s and Jason’s moral blameworthiness for these crimes is high.
[75] The mitigating factors in this case however are compelling. I do not view, as the Court of Appeal did in Adams, the lack of prior record as “the absence of an aggravating factor…” (paragraph 34) Ryan’s and Jason’s clean records are consistent with their previously pro-social lives. And while, as in Mr. Adams’ case, Ryan’s and Jason’s offences do not constitute “a momentary lapse in judgment”, they are “indicative of a short-term crime spree” which Bateman, J.A. observed might obtain an offender “some leniency.” (paragraph 34)
[76] I regard Ryan’s and Jason’s previous good characters and therefore their very robust prospects for rehabilitation as significant factors in my sentencing calculus. Furthermore, in the nearly twenty months since their arrests they have conducted themselves in an entirely responsible and mature manner while faithfully observing the strict conditions of their release. This is a relevant factor to weigh in the mix.
[77] It is also relevant to my analysis of how to properly balance the various sentencing principles in the circumstances of these offences and these offenders that not only will the sentences I impose be Ryan’s and Jason’s first penal consequence, it will be their first sentence of incarceration and it will be a federal prison sentence. This is material to the determination of how long a prison sentence it should be. As the Nova Scotia Court of Appeal noted in R. v. Colley, [1991] N.S.J. No. 62: "If the need to protect society can be well served by a shorter sentence as by a longer one, the shorter is to be preferred." The Ontario Court of Appeal has expressed a similar view: "... a first sentence of imprisonment should be as short as possible and tailored to the individual circumstances of the accused [rather] than solely for the purpose of general deterrence."(R. v. Priest, [1996] O.J. No. 3369) What is being given effect is the important principle of restraint in sentencing: that the court should impose "the least quantum that will achieve the overall purpose of being appropriate and just." (R. v. Best, [2005] N.S.J. No. 347 (S.C.), paragraph 25)
[78] Rosenberg, J.A. in R. v. Borde, [2003] O.J. No. 354 had the following to say on the issue of restraint:
... The length of a first penitentiary sentence for a youthful offender should rarely be determined solely by the objectives of denunciation and deterrence. Where, as here, the offender has not previously been to penitentiary or served a long adult sentence, the courts ought to proceed on the basis that the shortest possible sentence will achieve the relevant objectives... (paragraph 36)
[79] With all the foregoing principles in mind, I will deal first with the sentence for Jason Marriott. Jason pleaded guilty to two charges: the amended Count 13 which in his case encompasses 26 residential break-ins between March 7 and April 26, 2013, and Count 69, a break-in to a dwelling house in Hackett’s Cove on April 25, 2013. I am sentencing Jason to three years in prison on Count 13 and two years on Count 69, to be served concurrently. I am satisfied that notwithstanding the mitigating factors in his case, a minimum period of federal imprisonment as a total sentence - which would be a two year sentence - would not adequately emphasize the principles of denunciation and deterrence. A three year federal penitentiary term is a substantial and onerous sentence to impose on an offender whose only experience of incarceration has been one week on remand prior to securing bail. The three-year Zong benchmark although not in relation to a residential break-in was imposed in the case of a 54 year-old offender who had spent 33 years of his life locked up.
[80] Ryan Marriott’s case is more challenging due to the fact that he has pleaded guilty to 7 charges, some of which in my view, require consecutive sentences. This brings into play the totality principle. The totality principle is “a particular application of proportionality which is a fundamental principle of Canadian sentencing law.” (Adams, paragraph 21, citing R. v. M.(C.A.), [1996] S.C.J. No. 28) Where consecutive sentences are imposed, the totality principle requires that the combined sentence should not be "unduly long or harsh." (Adams, paragraph 19) And, "... a sentence must punish an offender no more than is necessary to express society's condemnation of the offence." (R. v. Nasogaluak, [2010] S.C.J. No. 6, paragraph 42)
[81] The procedure for sentencing multiple offences is well established: I am required to fix a sentence for each offence and determine which should be consecutive and which, if any, concurrent, and then I am to take a "final look" at the aggregate sentence. If, in taking this final look, I determine that the total sentence exceeds what would constitute a fit and appropriate sentence, I then reduce the overall sentence. (Adams, paragraph 23; see, also: R. v. Chan, [2011] N.S.J. No. 711 (S.C.))
[82] Ryan Marriott pleaded guilty to break-ins and thefts from convenience stores on November 2 and November 9, 2012, car thefts on those dates, and a break-in and theft at a pizza shop in March 2013, as well as amended Count 13, the residential break-ins, which in his case involved a total of 28 homes. Appropriate sentences for these offences are:
Count 13 the residential break-ins and thefts between March 7 and April 26, 2013
3.5 years – on the same principles as I have applied to Jason Marriott’s sentencing for this charge, however taking into account Ryan’s culpability for all 28 break-ins;
Count 1 the November 2, 2012 break and enter and theft at the Chain Lake Drive Needs Store
1 year consecutive to Count 13
Count 3 the November 2, 2012 theft of the Volkswagon Tiguan
3 months concurrent to Count 1
Count 4 the November 9, 2012 break and enter and theft at the Chain Lake Drive Needs Store
1 year consecutive to Count 13
Count 6 the November 9, 2012 break and enter and theft at the St. Margaret’s Bay Road convenience store
1 year concurrent to Count 4
Count 8 the November 9, 2012 theft of the Chrysler Cirrus
3 months concurrent to Count 4
Count 11 the March 6, 2013 break and enter and theft at the Spryfield pizza shop
1 year consecutive to Count 13
[83] These calculations produce a total sentence of 6.5 years. A “final look” at this sentence, particularly given Ryan’s age and strong prospects for full rehabilitation, quickly brings me to the conclusion that a 6.5 year sentence is far too harsh. I regard a fit and proper total sentence for Ryan to be in the 3.5 to 4 year range. This reflects the heightened degree of his moral culpability, that is, his involvement in more offences than his brother. As this is Ryan’s first sentence of incarceration, the principle of restraint persuades me that a 3.5 year sentence is appropriate. His sentence should be no longer than is required to achieve the sentencing objectives I have discussed.
Concluding Comments
[84] I am sentencing Jason Marriott to a total of three years in prison for the offences to which he has pleaded guilty. I am sentencing Ryan Marriott to a total of three and a half years in prison for the offences to which he has pleaded guilty. I recommend the Correctional Service of Canada ensure that Jason and Ryan receive programming that will complement and support the efforts they have been making to rehabilitate themselves. I also recommend that the Correctional Service utilize Ryan’s and Jason’s strong pro-social support network of family and friends in their case management and reintegration planning.
[85] I am obliged to impose on each of you what represents a difficult and painful consequence for what was an almost inexplicable deviation from the path that your lives were taking. You will undoubtedly emerge from this experience stronger and more determined to make a positive difference. You can find opportunities to do that while serving your sentences: there is a great need in this world for young men, like yourselves, with much to offer. And I have confidence that each of you has the fortitude and resolve to get through the challenging experience of a federal prison sentence and rebuild your lives.
[87] I will impose the primary DNA orders. There will be no victim surcharge in light of the penitentiary sentences.