R. v. G.O.A. - Excerpt Reasons for Judgment Date:, 2003 BCPC 494

Citation: R. v. G.O.A. - Excerpt Reasons for Judgment Date: 20030328 2003 BCPC 0494 File No: 17935-2-C Registry: Vancouver IN THE PROVINCIAL COURT OF BRITISH COLUMBIA REGINA v. G.O.A. EXCERPT FROM PROCEEDINGS REASONS FOR JUDGMENT OF THE HONOURABLE JUDGE ROSS TWEEDALE Counsel for the Crown: I. V. Colvin Counsel for the Defendant: G. K. Lee Place of Hearing: Vancouver, B.C. Date of Hearing: March 28, 2003 Date of Judgment: March 28, 2003 [ 1 ] THE COURT: G.O.A. has pled guilty to a serious criminal offence. In the early morning hours of August 11, 2002, in Burnaby, G.O.A. committed the aggravated assault of C.S.

It was a violent offence. It was a serious, violent offence. [ 2 ] The Statement of Facts, Exhibit 5, helpfully summarizes the horror of that attack on C.S. [ 3 ] The Victim Impact Statement of C.S., dated March 24, 2003, reflects the ongoing suffering experienced by C.S., physically, mentally and emotionally. It is a good thing, G.O.A., that you have read that statement and seen the results of that attack. [ 4 ] I am going to read some of the Statement of Facts.

On August 11, 2002 at or about 1:15 a.m., C.S. and two of his friends, a male and female, were at the Edmond Street SkyTrain Station in Burnaby, returning from a fireworks display in Vancouver. There were many people out on the street that night, and at the SkyTrain. When Mr. S. and his friends left the station, they were followed by G.O.A. and a large group of young persons. This group, of which G.O.A. was a party, followed Mr. S. and began yelling obscenities. Apparently several weeks previously, in what appears to be a very unfortunate coincidence, Mr.

S. and G.O.A. had met at another SkyTrain Station, Joyce Street. G.O.A. had been part of a group which challenged Mr. S. to a fight. Mr. S. refused to fight G.O.A.'s group, and fortunately on that occasion the group of which G.O.A. was a part and Mr. S. parted. On August 11th, in an attempt to get away from the group of people of which G.O.A. was a part, Mr. S. and his friends made a sharp left turn and walked onto a trail. The group blocked the entrance. Mr. S. was surrounded by five people. One of them, one of the group surrounding Mr. S., told him he was going to die. Mr. S.'s two friends ran away. Mr.

S. pulled a bottle of liquor from his backpack in an attempt to use it as a defensive weapon. Someone was afraid it was pepper spray and said so, and the group backed up. Someone said Mr. S. only had a bottle, it wasn't pepper spray. The group ran at Mr. S., and Mr. S., apparently reflexively, in trying to defend himself, threw the bottle toward G.O.A.

Whether the bottle hit G.O.A. or not is, in my view, of little or no significance. [ 5 ] In any event, the bottle fell and broke. That is significant because of how a piece of glass was later used as a weapon against Mr. S. Then about ten people rushed Mr. S. and threw him onto the ground. [ 6 ] Sitting in this courtroom today, listening to the facts, looking at the pictures of the injuries that were caused by you, G.O.A., and the people you were with, in some small way I think I appreciate the fear that Mr.

S. must have had, that he was unlikely to get out of that situation alive. [ 7 ] That group of people, of which you were a part, kicked him in the head, in the stomach, and stomped on his head. He was dragged off the pathway and into the bushes, and even though he tried to cover his head, people continued to kick him, and he was struck with a large rock. This attack continued for about five minutes. [ 8 ] During this vicious beating, G.O.A. yelled, "Stab him. Stab him." G.O.A. picked up a piece of the broken glass bottle and stabbed the victim in the back, six or seven times. [ 9 ] The assault continued.

During the stabbing, other attackers told Mr. S. he was going to die, again, and other people yelled, "Kill him." [ 10 ] Bystanders intervened, apparently unconnected with the mob or the victim of the attack. Those bystanders assisted Mr. S. to apply first aid by pressure to his wounds, and called for assistance from police and Emergency Health Services. The police, ambulance and healthcare workers attended, and Mr.

S. was taken off to hospital. [ 11 ] The Victim Impact Statement, Exhibit 6, tells, in C.S.'s words, not only about the 12 stab wounds, the 65 stitches, the extensive muscle and tissue damage, but the surgery, his recovery time and the fact that today, not surprisingly, he has chronic post traumatic stress disorder. He is being treated with antidepressant medication to help control symptoms of depression, anxiety and paranoia. [ 12 ] He has lost his friends. He has lost something that is very important to him related to sports.

Ironically, one of those sports is basketball, something that G.O.A., you have excelled in. [ 13 ] He is having trouble in school.

He has a supportive employer. [ 14 ] He remarks, rather sadly, he lost every piece of clothing he was wearing that evening, and it had some significance for him, because it had been given to him for his sixteenth birthday, which he celebrated about a month before. [ 15 ] I do not imagine there are too many people hearing of this aggravated assault, this serious, violent criminal act and the effect on the 16-year-old victim who would not feel a great degree of anger against the youthful mob that attacked Mr. S..

Angry that people would do that, anger that they would get so drunk that they did not have the logic, the good sense, the reason to say, "If I go with this group of people, I won't be able to measure the results of my action". [ 16 ] It would not surprise me if people who heard of these facts including Mr. C.S. and his family did not demand a form of punishment that saw you, G.O.A., suffer, as C.S. and his family has suffered.

A form of revenge based on primarily emotion that our community and our law rejects. [ 17 ] If it were possible, through a sentence that I gave, to reverse the results of the physical, mental and emotional injury to C.S. by giving you a prison sentence, or a longer prison sentence, I would have to consider that, and I think you and your father who is present here with you today, would see the justice in that. [ 18 ] But no sentence that I give today will shorten by one moment the suffering of C.St.

In the seven to eight months since this attack, he has shown remarkable recovery himself, in returning to work, in trying to continue his education, and in trying to deal with the horror of that night through seeking medical care, both psychological and physical. [ 19 ] I said earlier in this proceeding that although I am sentencing you under the Young Offenders Act , I am very aware that in a few days a new law will govern sentencing by Youth Justice Court Judges, and if there is reason to review my reasons today, I state that I am sentencing under the Young Offenders Act .

I recognize the new Youth Criminal Justice Act emphasizes even more clearly the rehabilitative remedial aspects of youth sentencing, and I take that into account while being governed, up until and including March 31st, by the Young Offenders Act . Put another way, my sentence would be no different under either Act . [ 20 ] The old Act , the Act that I am proceeding under, mandates great care before sentencing any young person to jail. The new Act , as I have said, makes it even more clear that jail is to be avoided at all costs.

It substitutes the often conflicting principles in the old Act , the YOA , with principles that are likely more in harmony with one another. [ 21 ] In looking to the new Act while sentencing under the old, I am mindful of

Part 8, the transitional provisions. When referring to sentences, if this sentence were being pronounced on April 1, even though begun under the old Act , I am required to sentence under the Youth Criminal Justice Act . [ 22 ] As this is the first sentence I recall, that I have made mention of the Declaration of Principle in the new Act , I am going to refer to a few of them. [ 23 ] Under Section 3(1)(a): (

a) the youth criminal justice system is intended to (

i) prevent crime by addressing the circumstances underlying a young person's offending behaviour,

(ii) rehabilitate young persons who commit offences and reintegrate them... (iii) ensure that a young person is subject to meaningful consequences for his or her offence in order to promote the long-term protection of the public; And 3(1) (

b) says that the justice system: ...for young persons must be separate from that of adults and emphasize...: (

i) rehabilitation and reintegration, (ii) fair and proportionate accountability that is consistent with the greater dependency of young persons and their reduced level of maturity, (iii) enhanced procedural protection... (iv) timely intervention that reinforces the link between the offending behaviour and its consequences, and (

v) the promptness and speed with which persons responsible for enforcing this Act must act, given young persons' perception of time. [ 24 ] Within the limits of fair and proportionate accountability, subsection (

c) says that the measures, this sentence, should: (

i) reinforce respect for societal values, (ii) encourage the repair of harm done to victims and the community, (iii) be meaningful for the individual young person... (iv) respect gender, ethnic, cultural and linguistic differences... [ 25 ] As to the need to prevent crime by addressing the circumstances underlying a young person's offending behaviour, I believe that a probation order with strict terms similar to that which would accompany an adult conditional sentence would meet the Declaration of Principle. [ 26 ] How to rehabilitate this young person and to reintegrate him.

The answer to that is that we have seen, although it is early days, what G.O.A. has done since that horrible early morning. He has complied, as completely as one can, with the order of the court with the help of his father and mother, while released back into the community. He has not committed any other violent offences, nor any offences whatever. [ 27 ] How do I ensure that you, G.O.A., are subject to meaningful consequences? How is the public protected, and how are Canadian societal values upheld and enhanced?

One way in which those values will not be enhanced is to give in to a feeling of revenge and punishment out of proportion to your moral responsibility. [ 28 ] What you did was terrible. You know it and I know it. Anyone in this courtroom listening knows it. Your father, your mother, your brothers and sister know it. Your community in which you worship knows it. The community in which you work, knows it. You have already been held to account in terms of your dishonour, in those communities, among those people. [ 29 ]] How can you repair the harm that you did, G.O.A., to Mr. S.? You cannot turn back the clock.

You cannot heal the wounds in his back. You cannot take away the fear that he has when he goes out in public. I cannot think of a way that you can repair that, except in some very modest way through something like community service which does not really help Mr. S. [ 30 ] If there was some way that you could earn some money to pay for his surgery, I would certainly consider doing that, and I think you probably would too.

But I do not know if it is going to cost any money and if so, how much. [ 31 ] Your father has spoken eloquently on your behalf that he has been hurt by this, and that your family depends on you, a lot. It seems wrong to punish your family more by putting you in jail. [ 32 ] You have pled guilty. It is certainly possible after a trial, you may have been found guilty of some lesser offence. But you did not insist on a trial to prove your guilt beyond a reasonable doubt, and that must be recognized as a real sign of remorse in a case like this. [ 33 ] You did spend about three weeks in custody after arrest.

For some people that might not seem very long. For somebody like you, 16, not been in jail before, I am sure it seemed like a long time. [ 34 ] All that you have done since that day with regard to school and work and community has indicated that something similar to an adult conditional sentence should be imposed. [ 35 ] The result of that and a Pre-Disposition Report that is very favourable leads me to place you on probation for a period of 24 months. [ 36 ] For the first 15 months, you will be on something close to house arrest.

For the balance of nine months you will be on a curfew. [ 37 ] Today you are to report to a youth worker and afterward as required: you are to remain within your residence daily, except as necessary to report to your youth worker, for travel and attendance directly related to your employment, training or education purposes,

for medical appointments for yourself, for attendance at a location for religious worship, and for such other purposes as may be pre- approved in writing by your youth worker. [ 38 ] For the remainder of the sentence, the balance of nine months, you are to observe a midnight to 6:00 a.m. curfew daily, subject to the exceptions just described. [ 39 ] Counsel will have noticed that I have not gone through the various cases handed to me, that I have not embarked on a comparison and contrast, that I have not mentioned a range of sentences.

Anyone involved in criminal justice sentencing knows that ranges can be used and mis-used, that for each offence one may find similar facts, but it is rare to find the similar facts along with the similar facts of the individual being sentenced, and all sentencing is individual. [ 40 ] I also refer, with respect, to remarks by Madam Justice Newbury in R. v . Bernier from earlier this month, 2003 BCCA 134 (CanLII) , [2003], B.C.J. 466 , in her concurring reasons where she said at paragraph 106: ...I agree with the suggestion made by Madam Justice Southin...

Who wrote reasons for herself and a concurring majority. ...that since Parliament has now codified the principles of (adult) sentencing... ...it would be better for courts to focus upon those principles and how they apply in particular cases, than on "ranges". On the other hand, I acknowledge that "ranges" are a convenient shorthand for counsel to use in making submissions on sentencing and that the Supreme Court of Canada has given its approval to this approach in cases such as R. v. M.(C.A.) Citation omitted.

But the usefulness of ranges will always be limited by the countervailing consideration that in Canada, each case must still be assessed on its own facts and that as also noted in M.(C.A.), ". . . the search for a single appropriate sentence for a similar offender and a similar crime will frequently be a fruitless exercise of academic abstraction." (para. 92.) [ 41 ] Any breach of probation that is alleged, charged in this case, will result in the matter coming back before me, G.O.A.

I am responsible for supervision of this sentence for your conduct in the community over the next two years, along with the youth worker, in the same way that if this were an adult sentence and you were under a conditional sentence, the matter would come back before me. [ 42 ] You have shown very bad judgment and committed a very serious criminal offence. Since then, you have tried to make things right, as best you can, and my sentence today is for the purpose of encouraging you to continue on that path. (EXCERPT CONCLUDED)