R. v. S.R.O., 2018 BCPC 184

Citation: R. v. S.R.O. 2018 BCPC 184 Date: 20180625 File Nos: 8896-1, 8923-1, and 98660-1 Registry: Port Coquitlam IN THE PROVINCIAL COURT OF BRITISH COLUMBIA REGINA v. S.R.O. ORAL REASONS FOR SENTENCE OF THE HONOURABLE JUDGE R. MCQUILLAN BAN ON PUBLICATION s. 486.4(2) CCC s. 539(1) CC C Counsel for the Crown: L. Dal Santo Counsel for the Accused: J. Thorhaug Place of Hearing: Port Coquitlam , B.C.

Dates of Hearing: June 6 and 11, 2018 Date of Judgment: June 25, 2018 [ 1 ] THE COURT: S.R.O. has pleaded guilty to the following: 1) One count of sexual assault on January 1 st , 2014, contrary to s. 271 of the Criminal Code ; 2) One count of assault with a weapon on June 8 th , 2014, contrary to s. 267 (

a) of the Criminal Code ; and 3) One count of aggravated assault on November 11 th , 2016, contrary to s. 268(2) of the Criminal Code . [ 2 ] As S.R.O. was under the age of 18 at the time of committing the first two offences, the provisions of the Youth Criminal Justice Act apply to those charges. [ 3 ] The count of aggravated assault occurred when S.R.O. was 20 years old and as such the Youth Criminal Justice Act does not apply to that offence. [ 4 ] He is now before me for sentencing on all three charges.

Sexual Assault [ 5 ] On January 1 st , 2014, the police were called to attend a residence in response to a report of a sexual assault. The complainant, who I will refer to as N.K., stated that she and S.R.O. had been having consensual sex but that she told him to stop when he began to attempt anal intercourse with her. He did not stop and she began crying as it was hurting. The complainant stated that she had repeatedly said no to the anal sex but that S.R.O. nonetheless pulled down her underwear and persisted.

He then fled the residence where this occurred. [ 6 ] After meeting with the distraught N.K., the police attended the residence associated with S.R.O. and arrested him. [ 7 ] At the time of this offence, S.R.O. had a recent history of committing violent offences, including an assault which occurred in July 2013 and assault causing bodily harm which occurred in November 2013. Both of those offences later resulted in convictions after this offence of sexual assault. [ 8 ] The Crown is seeking a custodial sentence of nine to 12 months for this offence.

It also seeks an order under the Sex Offender Registry (“ SOIRA ”) for a period of 10 years, a firearms prohibition pursuant to s. 110 for 10 years, and a DNA order. Assault with a Weapon [ 9 ] On June 8 th , 2014, S.R.O. had been intoxicated and had climbed in the bedroom window of his sister’s residence. The victim, R.N., who was S.R.O.’s sister’s boyfriend, confronted S.R.O. inside the residence. S.R.O. then became aggressive causing R.N. to call the police. [ 10 ] S.R.O. then left the residence. R.N. then went looking for S.R.O. and found him and his brother, T., nearby.

R.N. was carrying a baseball bat as he thought that S.R.O. had previously damaged his car. [ 11 ] T. then attacked R.N. and stabbed him in the back. S.R.O. then got on top of R.N. and poked him with the bat, holding him down and threatening to hit him. T. and S.R.O. then fled on foot. R.N. was found lying on the roadside in a pool of blood with the stab wound to his back. [ 12 ] At the time of this offence, S.R.O. was on bail for the aforementioned sexual assault and had been convicted of the above-noted assault, as well as a conviction for possession for the purposes of trafficking.

As a result of those convictions, he was subject to an intensive support and supervision order (“ISSP”), which included a condition that he not possess any weapons. As such, the Crown says that the fact that S.R.O. was breaching his ISSP by possessing a bat, is an aggravating factor that I should consider in sentencing. As well, his prior record of violence is aggravating. I agree that those are aggravating factors. He also had an outstanding charge of aggravated assault at the time of this offence.

He was intoxicated and was 17 years old at the time of this offence. [ 13 ] The Crown is seeking a jail sentence of two to four months for this offence with four months being double the jail sentence he received for the previous conviction for assault causing bodily harm. Although I was not provided with much detail regarding the earlier assault causing bodily harm, I am told that it involved an altercation while drinking with a co-worker as a result of which the co-worker lost the tip of his nose. [ 14 ] The Crown also seeks a lifetime-firearms ban pursuant to s. 110 of the Criminal Code .

Aggravated Assault [ 15 ] By far the most serious charge S.R.O. faces on this sentencing is that of aggravated assault. That offence occurred on November 11 th , 2016. That day S.R.O., who was then 19 years old, had been spending time at the home of the victim, D.S. D.S. had been a friend of his for some time. A third individual, R.Z., was also present at the home. The three of them had been drinking at a pub earlier in the evening and had come back to D.S.’s home to continue drinking. [ 16 ] At some point in the evening, a diver's knife was produced while at D.S.’s home.

The knife belonged to a family friend of D.S. After the three of them briefly played with the knife, D.S. returned it to a drawer.

[ 17 ] R.Z. left the residence at about 9:00 p.m., while D.S. and S.R.O. remained and continued to drink. At approximately 10:30 p.m., the two of them left the residence in a taxi to purchase more alcohol. Unbeknownst to D.S., S.R.O. took the diver's knife with him when they left. [ 18 ] S.R.O. and D.S. were then seen to purchase more alcohol at the Jolly Coachman Pub in Pitt Meadows at approximately 10:51 p.m. After leaving the pub, the two men made their way on foot to the grounds of Davie Jones Elementary. There they ran into three other individuals at the schoolground.

They exchanged words with one another and, according to one of the three individuals, S.R.O. and D.S. attacked him. Following a brief scuffle, S.R.O. and D.S. then departed. [ 19 ] Sometime shortly after that, S.R.O. brutally attacked D.S. with the diver's knife. D.S. was found by a homeowner lying on his property at approximately 11:43 p.m. He was bleeding profusely with 19 stab wounds to his body including across his face and his neck.

The diver's knife was located nearby. [ 20 ] D.S. was unable to communicate to the police what had happened that evening after the altercation in the schoolground with the three individuals. He had no recollection of who had attacked him with a knife that evening. [ 21 ] When the police first learned of the attack on D.S., they attempted to find S.R.O. as they were concerned that he too might be a victim, having been with D.S. earlier in the evening. [ 22 ] The police contacted S.R.O. ’s sister, who S.R.O. often lived with, but she advised that she did not know where he was.

It was later determined that his sister had been covering up for S.R.O. and that in fact he had phoned her after the attack on D.S. and asked her to pick him up. She picked him up and he then hid out at her home for the night. [ 23 ] The next day, S.R.O. called the police as he said he had been told that they were looking for them. He gave the police a warned statement and said that he and D.S. had been attacked by three individuals at the school and that he had been knocked unconscious.

He otherwise professed no knowledge of what had happened to D.S. [ 24 ] The subsequent investigation by the police revealed that S.R.O. was not being truthful with them about his conduct that evening. He became the primary suspect in the attack on D.S. as the police continued their investigation. [ 25 ] Several months later, on July 5 th , 2017, S.R.O. was arrested in relation to the November 11 th attack on D.S. He gave a warned statement to the police at that time. He maintained that in the altercation that night in the schoolground, he got hit on the head and ran away.

He further suggested that the perpetrator of the attack could have been R.Z. or R.Z.’s drug dealer. [ 26 ] S.R.O. was released by the police the next day without charges. However, before being released, the police began an undercover operation to connect an undercover officer with him while he was in jail. That officer maintained contact with him after he was released and following his return to Alberta. S.R.O. later admitted to the undercover agent that he had stabbed D.S. and that he had subsequently buried his clothes to hide the evidence against him.

He told the agent that the reason for attacking him was because D.S.’s mother had previously arranged to have him beaten and he wanted revenge. [ 27 ] S.R.O. was again arrested and initially charged with attempted murder of D.S. On March 14 th , 2018, S.R.O. pled guilty to the lesser included offence of aggravated assault. The Victim [ 28 ] D.S. sustained serious injuries in the attack on him. The 19 stab wounds include multiple lacerations to his head and face, back, and upper and lower extremities, as well as a collapsed lung.

The photographs of his injuries which were in evidence in the sentencing hearing, reveal a gaping laceration from his upper lip to the bottom of his eye and two deep lacerations to his neck. He also sustained an occipital bone fracture, as well as deep stab wounds to his arms and legs. He sustained a scapular fracture. [ 29 ] Many of the lacerations were stapled and stitched closed but the facial laceration required that he undergo plastic surgery on November 12.

Further surgery was required on November 15 to repair the nerve damage to the left arm and to repair the tendons in his hand. [ 30 ] As a result of his injuries, D.S. has been left with permanent facial scarring, having had 100 stitches to close the facial wounds. He has diminished strength in his left arm. He has reduced sensation in the ring finger and fifth finger of his left hand. The decreased functionality of his left hand has resulted in a possible functional disability. He has also lost a front tooth. [ 31 ] D.S. submitted a victim impact statement for sentencing purposes.

In that statement, which was prepared for him by his mother, A.S., he describes the emotional impact of the attack as being reduced self-esteem, a tendency to drink excessively, reduced communication with others and frequently arguing with family members. He has been unable to work since the assault and says that he has been unable to get a girlfriend due to his low self-esteem. [ 32 ] As for the physical impact of the injury, he refers to a significant weight gain and possible future dental surgery and surgery for his arm.

He also refers to the possibility of not regaining feeling in his left arm and hand. [ 33 ] He owes money for the dental expenses incurred by the injuries and is falling behind in payments of his living expenses due to his inability to work. [ 34 ] He also expresses a loss of a sense of security for himself and his family members out of fear of retribution from S.R.O. ’s friends. [ 35 ] D.S. ’s mother, A.S., also submitted her own victim impact statement in which she expressed her own fears for her security as a result of this incident. She says that she now suffers from insomnia and is in need of counselling.

She is falling behind in paying her

bills because her son is unable to work and contribute financially to the family. Pre-Sentence Report and Psychological Report [ 36 ] A Pre-Sentence Report (“PSR”) was prepared to assist in sentencing. As S.R.O. is Aboriginal, the report includes a component to address Gladue considerations. [ 37 ] The PSR reveals that S.R.O. is 21 years old, having been born in New Westminster on [omitted for publication]. He describes having a tumultuous childhood, with both of his parents struggling with alcoholism. He has six siblings and half-siblings.

His father was physically and emotionally abusive with his mother and, at times, was physically abusive towards him, on one occasion beating him with a leather belt. As a result of the ongoing violence and instability in the home, S.R.O. was removed from his home at age four and remained in foster care for approximately a year before returning home. [ 38 ] His parents separated in 2009 and S.R.O. remained with his mother. However, his mother continued to struggle with sobriety and eventually he and his siblings moved in with his older sister, who assumed a parental role.

His mother passed away from skin cancer in 2017 and his sister, C., committed suicide a few months before that. [ 39 ] C. had received a diagnosis of Fetal Alcohol Spectrum Disorder but because S.R.O. ’s mother denied alcohol use during her pregnancy with him, he has never been assessed for FASD. An earlier PSR suggests, however, that it is possible that S.R.O. suffers from FASD. [ 40 ] S.R.O. resided with his maternal aunt and uncle for nine months in 2010 and 2011 and at first did very well there, excelling in school.

However, after getting in with a bad group of peers and beginning to bristle under the strict rules of that home, S.R.O. had to leave. His housing situation appears to have been somewhat unstable since 2012 when he was just 16 years old. [ 41 ] S.R.O. appears to be bright and did well in his elementary school years. However, due to his chaotic home life, unstable housing and alcohol use, he only completed Grade 11 in high school.

He is currently in the process of completing his Dogwood Certificate while in custody. [ 42 ] He has a history of employment in the construction industry having been employed as a carpenter and a framer for several companies over the years. Prior to going into custody, he was working for his father’s company in Alberta doing concrete flooring. He hopes to return to that work with his father when he is released from custody. [ 43 ] S.R.O. states that he first tried alcohol and marihuana at age 12, although he did not begin to drink excessively until he was 16 years old.

He reports that he has never drank alcohol on a daily basis but that when he does consume it, he drinks to excess and often in combination with cocaine. He admits that alcohol and cocaine were significant factors in this offence. Indeed, alcohol appears to have been a factor in most, if not all, of his criminal offending. Clearly, substance abuse is a significant problem for him.

He has not previously attended any treatment or recovery houses although, as a youth he attended some drug and alcohol counselling. [ 44 ] As noted earlier, S.R.O. has a youth criminal record which includes convictions for offences of violence. His youth record consists of convictions for assault, carrying a prohibited weapon, possession for the purposes of trafficking, assault causing bodily harm and failure to comply with a sentence. [ 45 ] A psychological assessment and risk assessment was also prepared to assist in sentencing.

In that report, S.R.O. admits that he has a history of becoming violent when intoxicated. He said that he can become violent when drinking if he is in a bad mood and that on the day of this incident, he was in a bad mood prior to drinking. He also admitted to using cocaine that evening. He claimed to have only a vague recollection of events the night of November 11, 2016. [ 46 ] In terms of assessing his risk for future criminal behaviour, the psychological report assesses it in the low/moderate range when compared to a sample of prison inmates.

However, he presents as a high risk for violence, particularly in the context of substance abuse and involvement with a negative peer group, but if he is able to maintain sobriety, his risk for violence probably falls into the low/moderate range. He is seen as a fairly good candidate for treatment and that he could gain considerable benefit from a program aimed at violence prevention and for personal counselling. [ 47 ] The issue of S.R.O. ’s remorse was of some controversy at sentencing.

The psychological report describes him as speaking of the offence in a dispassionate manner with no expressions of remorse or empathy for the victim. However, he told the PSR writer that he takes full responsibility for the offence and expresses regret and remorse. His guilty plea is an affirmation of his taking responsibility for his conduct. In addition, S.R.O. addressed the court in sentencing and in doing so, expressed remorse for his actions that night. I accept that he was sincere in making that statement. [ 48 ] S.R.O. is of First Nations background on his mother’s side.

His mother is from the Tsuu T’ina Reserve located in southwest Calgary. As his mother was adopted off of the reserve at a young age to a non-Aboriginal family, he has never been to the reserve. His father is also part Nations and belongs to the Ojibway Nation in Ontario. [ 49 ] S.R.O. was raised with minimal Aboriginal influence and has little connection to his First Nations heritage. However, since being in custody, he has been participating in smudges and arts and crafts with elders and expresses a desire to connect with his heritage.

He has also been participating in daily Buddhist meditation and studies, which he says gives him peace of mind. [ 50 ] The Pre-Sentence Report sets out several programs in the community designed to address substance abuse, anger and other issues. Sentencing Positions regarding Aggravated Assault [ 51 ] The Crown seeks a sentence of three and a half to four years for this offence, less pre-sentence custody. In addition, the Crown

seeks a DNA order, as well as a lifetime weapons prohibition pursuant to s. 110 of the Criminal Code. [52] Although the youth convictions that are before me for sentencing are distinct events from the aggravated assault and occurredlong before the aggravated assault, both the Crown and defence submit that the totality principle supports the three sentences beingserved concurrently.

This, the Crown submits, should therefore result in a total sentence of 3½ to 4 years less time served, which, atenhanced credit, is 428 days as of the date of this sentencing decision. [53] The defence says that the appropriate sentence should be one that is within the provincial range being less than two years, aftercounting for pre-sentence custody. Law [54]

Section 268 of the Criminal Code provides for a maximum sentence of 14 years imprisonment for aggravated assault. Sections718, 718.1 and 718.2 set out the sentencing principles that I must be guided by. They state in part: 718 The fundamental purpose of sentencing is to protect society and to contribute, along with crime prevention initiatives, to respect forthe law and the maintenance of a just, peaceful and safe society by imposing just sanctions that have one or more of the followingobjectives: (

a) to denounce unlawful conduct and the harm done to victims or to the community that is caused by unlawful conduct; (

b) to deter the offender and other persons from committing offences; (

c) to separate offenders from society, where necessary; (

d) to assist in rehabilitating offenders; (

e) to provide reparations for harm done to victims or to the community; and (

f) to promote a sense of responsibility in offenders, and acknowledgment of the harm done to victims or to the community. 718.1 A sentence must be proportionate to the gravity of the offence and the degree of responsibility of the offender. 718.2 A court that imposes a sentence shall also take into consideration the following principles: (

a) a sentence should be increased or reduced to account for any relevant aggravating or mitigating circumstances relating to the offenceor the offender, and, without limiting the generality of the foregoing, ... (iii.1) evidence that the offence had a significant impact on the victim, considering their age and other personal circumstances, includingtheir health and financial situation... … shall be deemed to be aggravating circumstances; (

b) a sentence should be similar to sentences imposed on similar offenders for similar offences committed in similar circumstances; (

c) where consecutive sentences are imposed, the combined sentence should not be unduly long or harsh; (

d) an offender should not be deprived of liberty, if less restrictive sanctions may be appropriate in the circumstances; (

e) all available sanctions other than imprisonment that are reasonable in the circumstances and consistent with the harm done to victimsor to the community should be considered for all offenders, with particular attention to the circumstances of Aboriginal offenders. [55] In addition to the sentencing principles described in those sections, because S.R.O. is of Aboriginal heritage, I am required toconsider and apply the principles related to Aboriginal offenders as articulated in R. v. Gladue, (SCC), [1999] 1 SCR688 and R. v.

Ipeelee, 2012 SCC 13. [56] Gladue explains that s. 718.2(e), which requires sentencing judges to consider all available sanctions other than imprisonmentand to pay particular attention to the circumstances of Aboriginal offenders, is remedial in nature and is designed to ameliorate theserious problems of over-representation of Aboriginal persons in prisons and to encourage sentencing judges to have recourse to arestorative approach to sentencing. In giving voice to Aboriginal principles of restorative justice, the Supreme Court of Canada said thisat paragraphs 78 to 79: 78 In describing the effect of s. 718.2(

e) in this way, we do not mean to suggest that, as a general practice, aboriginal offenders mustalways be sentenced in a manner which gives greatest weight to the principles of restorative justice, and less weight to goals such asdeterrence, denunciation, and separation. It is unreasonable to assume that aboriginal peoples themselves do not believe in theimportance of these latter goals, and even if they do not, that such goals must not predominate in appropriate cases.

Clearly there aresome serious offences and some offenders for which and for whom separation, denunciation, and deterrence are fundamentally relevant. 79 Yet, even where an offence is considered serious, the length of the term of imprisonment must be considered. In some circumstancesthe length of the sentence of an aboriginal offender may be less and in others the same as that of any other offender. Generally, the moreviolent and serious the offence the more likely it is as a practical reality that the terms of imprisonment for aboriginals and

non-aboriginals will be close to each other or the same, even taking into account their different concepts of sentencing. [57] The fundamental purpose of s. 718(2)(

e) is to treat Aboriginal offenders fairly by taking into account their differences. Asfurther stated in Gladue at paragraph 88: 88 But s. 718.2(

e) should not be taken as requiring an automatic reduction of a sentence, or a remission of a warranted period ofincarceration, simply because the offender is aboriginal. To the extent that the appellant’s submission on affirmative action means that s.718.2(

e) requires an automatic reduction in sentence for an aboriginal offender, we reject that view.

The provision is a direction tosentencing judges to consider certain unique circumstances pertaining to aboriginal offenders as a part of the task of weighing themultitude of factors which must be taken into account in striving to impose a fit sentence. [58] In Ipeelee, the Supreme Court of Canada addressed some of the post-Gladue jurisprudence and affirmed that an Aboriginaloffender is not required to establish or causal link between background factors and the commission of the current offence before beingentitled to have those matters considered by the sentencing judge. [59] Further, the court clarified its earlier statement in Gladue that generally the more violent and serious the offence, the more likelyit is as a practical reality that the terms of imprisonment for Aboriginals and non-Aboriginals will be close to each other or the same,even taking into account their different concepts of sentencing.

In Ipeelee, the court said that to interpret this generalization as anindication that Gladue principles do not apply to more serious offences is an error. At paragraph 87, the court stated: 87 The sentencing judge has a statutory duty, imposed by s. 718.2(

e) of the Criminal Code, to consider the unique circumstances ofAboriginal offenders. Failure to apply Gladue in any case involving an Aboriginal offender runs afoul of this statutory obligation. Asthese reasons have explained, such a failure would also result in a sentence that was not fit and was not consistent with the fundamentalprinciple of proportionality. [60] In the case before me, the Crown relies on three cases which it says supports a sentence in the range of three and a half to fouryears. All involve Aboriginal offenders. [61] The first case is that of R. v. McNab, 2018 SKQB 64.

That case involved a 23-year-old Aboriginal offender who pled guilty toone count of aggravated assault. The offender had attended a backyard party in which the victim was also in attendance. Both wereintoxicated and they began fighting. During the fight, the offender struck the victim with a hatchet. The victim suffered several seriousinjuries to his head and torso. He underwent two surgeries, however the injuries to his head were irreversible. The injuries resulted inmemory loss and physical deformities to his appearance.

He was unable to speak for some time and part of his skull was removed andreplaced with a metal plate. He had been unable to work in the three years since the incident. The offender did not recall the incidentdue to his level of intoxication. [62] The offender came from an impoverished background with his parents suffering from substance abuse problems. He wasremoved from his home by social workers at age 14 and thereafter lived in foster homes.

He attempted suicide three times and struggledwith addiction. [63] His criminal record was significant, beginning at 15, with 12 convictions since becoming an adult including for violentoffences. Ultimately, he received a sentence of four years less time served for this offence. [64] The second case relied on by the Crown is the British Columbia case of R. v. Billing, 2017 BCSC 1107. That case involved a36-year-old Aboriginal offender who was found guilty by a jury of aggravated assault.

The offender had stabbed a victim several timesduring an altercation, resulting in the victim sustaining a punctured lung and requiring part of his lung to be removed. There was someprovocation by the victim. The victim had fully recovered from the stabbing injuries by the time of the sentencing, one year after theincident. The offender had a substantial criminal record with at least 44 prior convictions, 14 of which were for violent offences. [65] The offender had a difficult childhood marked by family violence, alcoholism, instability and sexual abuse.

He attemptedsuicide at age nine and had been diagnosed with bipolar disorder and attention deficit hyperactivity disorder. He was on probation at thetime of committing the aggravated assault. He had a history of poly-substance use that included marihuana, alcohol, cocaine, MDMA,heroin and anabolic steroids. [66] Although of Metis heritage, the offender was not raised within the Metis culture and had no connection with that community.

Despite that lack of connection, his life was clearly impacted by adverse factors that affect Aboriginals including multi-generationalsubstance abuse, familial fragmentation, early exposure to violence and criminality, childhood sexual victimization and more generally,the intergenerational effects flowing from colonization. [67] The court stated that the accepted range of sentence for aggravated assault in British Columbia is 16 months to six years asendorsed by the B.C. Court of Appeal in R. v. Nguyen, 2016 BCCA 408.

Further, it accepted that sentences at the lower end of the rangetend to be imposed in “fight” situations, whereas sentences at the higher end tend to be imposed in situations where the victims areattacked with a weapon without provocation and without any opportunity to defend themselves: R. v. Johnson, (BCCA), [1998] 131 CCC (3d) 274, at paragraph 10. [68] Ultimately in Billing, the court found that a fit sentence was three years.

However, were it not for the offender’s somewhatreduced blameworthiness related to Gladue factors and the fact that there was some provocation leading to the assault, he would havereceived a sentence of four years. [69] The third case relied on by the Crown is the Alberta case of R. v. Firingstoney, 2017 ABQB 343. That case involved a 33-year-old Aboriginal offender who pled guilty to aggravated assault. He had stabbed a 75-year-old victim twice after the victim had confrontedhim for stealing his car keys with a view to stealing the victim’s car.

The victim suffered two penetrating wounds to his chest andabdomen which were life-threatening. At the time of the offence, the offender was intoxicated and had been using cocaine for severaldays.

[ 70 ] The offender had a lengthy criminal record with 58 prior convictions, 15 of which were offences of violence. The offender grew up with trauma penetrating his family, with his father having attended residential school. He was exposed to violence and substance abuse while growing up and was sexually abused by a family friend. He and his siblings were placed in foster care on a few occasions and he remained in foster care from the age of 15 to 18.

He had a history of substance abuse. [ 71 ] In addition, psychological testing showed that his neurological functioning was compromised, resulting in an extremely low level of intellectual functioning possibly due to FASD. [ 72 ] He received a sentence of four years and 10 months, less time served. Application to the Present Case [ 73 ] Turning to the mitigating and aggravating factors for the aggravated assault before me, I find the following to be mitigating: 1. S.R.O.’s guilty plea and an expression of remorse; 2. S.R.O.’s youthfulness.

This fact has a bearing on both his blameworthiness and his greater potential for rehabilitation; 3. S.R.O.’s motivation and engagement in programs since coming into custody; and 4. Gladue factors which have contributed to the very difficult upbringing that S.R.O. has experienced. [ 74 ] I note that the same mitigating factors apply to the sexual assault and assault with a weapon charges for which he is also being sentenced. [ 75 ] I find the following to be aggravating factors: 1. S.R.O.’s criminal record which is relatively short but includes previous offences of violence; 2.

The extremely violent nature of the assault, with 19 stab wounds to the victim; 3. The significant impact of these injuries to D.S.; 4. The fact that S.R.O. fled the scene of the crime and then attempted to cover up his involvement; 5. His leaving the victim behind in a remote location at night with the possibility of him dying of his injuries; and 6. The fact that he was on bail when this offence occurred. [ 76 ] Turning to the cases relied on by the Crown, as noted, all three of those offenders were Aboriginal and the decisions include Gladue considerations.

All of them had lengthier criminal records than S.R.O. , however the injuries in Billing and Firingstoney were less serious than in the present case. In addition, in all three cases the assaults were not entirely unprovoked. In McNab , the assault was an escalation from a fight. In Billing , there was some level of provocation leading to the assault. In Firingstoney , the assault began only after the victim had confronted the offender about attempting to steal his car and put the offender in a headlock.

Furthermore, in both Firingstoney and Billing , the offenders were psychologically compromised by an extremely low level of intellectual functioning in the former and bipolar disorder in the latter.

No such issues arise in S.R.O.’s case. [ 77 ] After careful consideration of the sentencing principles described above, as well as the cases referred to, I find that a fit sentence for the offence of aggravated assault is three and a half years in custody less time served. [ 78 ] Returning to the youth charges of sexual assault and assault with a weapon, I have also given consideration to ss. 38 and 40 of the Youth Criminal Justice Act in determining a fit sentence. In doing so, I find that a fit sentence for the offence of sexual assault is nine months.

I further find that a fit sentence for the offence of assault with a weapon is three months.

However, I also agree with counsel that the principle of totality, as well as the fact that these two latter sentences are youth sentences, makes it appropriate that these be served concurrently with one another and with the sentence for aggravated assault. [ 79 ] As S.R.O. has been in pre-sentence custody for 285 days, he shall receive enhanced credit at time and a half for 428 days, which shall be deducted from the time he has left to serve. [ 80 ] Accordingly the remaining sentence which I impose is two years and 119 days. [ 81 ] There shall also be a weapons prohibition pursuant to s. 110 of the Criminal Code for 10 years in the case of the sexual assault and for life in the case of the assault with a weapon and aggravated assault. [ 82 ] As all three counts are primary designated offences, pursuant to s. 487.051(1), I make an order in Form 5.03 authorizing the taking of samples of bodily substances from you for the purpose of registration in the DNA National Data bank.

The samples will be taken from you while you are in jail and you must submit to the taking of the samples. [ 83 ] Pursuant to s. 743.21(1), you must have no contact or communication directly or indirectly with D.S. while you are in custody. [ 84 ] As you are incarcerated and have no ability now or in the near future to pay the victim fine surcharge, I will waive the requirement that it be paid for these offences. [ 85 ] That leaves one issue to be determined and that is the SOIRA issue. Counsel I would like to hear from you on that because I have looked up the

section and it is my impression, under s. 490.032(2) that I am not to make such an order where the individual is a

young person of the Youth Criminal Justice Act . (DISCUSSION) [ 86 ] THE COURT: So I will not make any SOIRA order then. [ 87 ] MR. THORHAUG: Nothing further from myself, I will go down to speak with S.R.O. about it. [ 88 ] MS. DAL SANTO: And with respect to the breach matter or any other outstanding matters, the Crown directs a stay of proceedings. [ 89 ] THE COURT: All right. Thank you. (REASONS FOR SENTENCE CONCLUDED)