HER MAJESTY THE QUEEN Respondent - v. -, 2003 ABCA 88

R. v. D.J.M., 2003 ABCA 88 Date: 2003 03 27 Docket: 0201-0335-A IN THE COURT OF APPEAL OF ALBERTA ____________________________________________________ THE COURT: THE HONOURABLE MADAM JUSTICE HUNT THE HONOURABLE MADAM JUSTICE PHILLIPS THE HONOURABLE MR. JUSTICE SIRRS _______________________________________________ BETWEEN: HER MAJESTY THE QUEEN Respondent - and - D.J.M. Appellant Appeal from the Sentence of THE HONOURABLE JUDGE P. LEVEQUE Sentenced the 18th day of October, 2002 The Accused having Pled Guilty ____________________________________________________ MEMORANDUM OF JUDGMENT DELIVERED FROM THE BENCH ____________________________________________________ COUNSEL:

G. Tomljanovic For the Respondent A. R.

Managh For the Appellant ____________________________________________________ MEMORANDUM OF JUDGMENT DELIVERED FROM THE BENCH ____________________________________________________ SIRRS J. (for the Court): [ 1 ] The learned Youth Court Judge faced a difficult task in sentencing the Young Person. [ 2 ] Although the Young Person was 16 at the time of the arson incident, he avoided detection for some three years, and approximately another year expired before he was sentenced. [ 3 ] In the intervening period, he accumulated an unenviable youth criminal record of some ten counts, seven of which involved failure to comply with the requirements of his probation. [ 4 ] The Young Person’s many breaches of probation provided the Youth Court Judge with concerns as to his suitability for further probation. [ 5 ] The arson incident involved a serious fire where the Young Person lobbed a Molotov cocktail into an occupied home around 12:00 a.m. midnight, causing some $19,000.00 damage. [ 6 ] Fortunately, no one was injured in the fire which was only a matter of good luck, because at 12:00 a.m. midnight, one would expect the occupants to be sleeping. [ 7 ] The Youth Court Judge had before him a 20-year-old young person.

It would be difficult to sentence him as if he were a 16- year-old young offender and take into consideration all the appropriate principles of sentencing. As the Youth Court Judge, he was asked to take into consideration in his sentencing the fact that the Young Person had pled guilty in adult court to a charge of uttering a threat to P., one of the participants in the arson incident.

The sentencing was further complicated by the fact that the Young Person’s co-accused had previously pled guilty in adult court to four charges, including two arson charges, for which he received a suspended sentence of 18 months on a joint submission. [ 8 ] In our opinion, the difficulties resulted in a demonstrably unfit sentence for the Young Person. [ 9 ] The learned Youth Court Judge properly took into account:

1. the seriousness of the charges; 2. the lack of any remorse by the Young Person; 3. the accumulation of a criminal record during the intervening period. [ 10 ] However, the learned Youth Court Judge stated he only saw aggravating factors in the Young Person’s case.

In our opinion, he overlooked the mitigating factors of: 1. the Young Person’s age; 2. the Young Person’s good behaviour for approximately one year prior to sentencing; 3. the relatively positive predisposition report. [ 11 ] In our view, the learned Youth Court Judge also failed to address the principle of parity and overlooked the principles of the Young Offenders Act . [ 12 ] Also, Crown counsel on this appeal conceded that 14 months custody was the maximum for which a Young Person had been sentenced on like circumstances in Canada.

Thus, 2 years custody was excessive. [ 13 ] In our opinion, 12 months closed custody is a fit sentence in this case. Taking into consideration that the Young Person spent considerable time in custody prior to and after sentencing, we would reduce his sentence to 10 months closed custody. [ 14 ] Thus, leave to appeal is granted, the appeal allowed and a sentence of 10 months closed custody is substituted. APPEAL HEARD on FEBRUARY 19, 2003 MEMORANDUM FILED at CALGARY , Alberta, this 27th day of MARCH , 2003 as authorized to sign for: ___________________________________ SIRRS J.