Her Majesty the Queen - v. -, 2013 SKPC 73

IN THE PROVINCIAL COURT OF SASKATCHEWAN Citation: 2013 SKPC 073 Date: May 22, 2013 Information: 24478073 Location: Nipawin _____________________________________________________________________________ Between: Her Majesty the Queen - and - Rico Zane Flett Appearing: Tom Healey For the Crown Todd Parlee For the Accused SENTENCING DECISION I. CARDINAL , J INTRODUCTION [ 1 ] In the early morning hours of September 1, 2012, Wayne Kroetsch and his girlfriend were walking down a street in Nipawin, Saskatchewan with a case of beer. Mr. Flett, and his cousin who was a young person at the time, approached the couple.

Without warning and without any words being spoken, Mr. Flett struck Mr. Kroetsch punching him in the face. Mr. Kroetsch immediately fell to the ground and then both Mr. Flett and his young cousin proceeded to kick him about the head and torso a number of times. Mr. Kroetsch’s girlfriend ran to a residence for help.

[ 2 ] The police arrived in the area and observed the two accused in the area with beer in their hands and at their feet. However, the police did not realize at the time they were involved in this matter. The police heard the victim’s girlfriend calling for help and attended to find Mr. Kroetsch unconscious on the ground bleeding from his head and face. He was taken to the local hospital then airlifted to a Saskatoon hospital. Both accused were arrested later that same date when two other men called 911 to advise that they were being followed and were concerned. [ 3 ] Mr.

Flett has entered guilty pleas to a charge of endangering the life of Wayne Kroetsch thereby committing an aggravated assault contrary to s. 268 of the Criminal Code and a charge of robbery by stealing beer from Wayne Kroetsch and using violence at the time thereof, contrary to s. 344 of the Criminal Code . He is now before this Court to be sentenced for these offences, both of which arise from the same circumstances. CIRCUMSTANCES OF THE VICTIM [ 4 ] The victim, Mr. Kroetsch, suffered significant injuries. He was in hospital for approximately five weeks, during most of which he was in a coma.

He was not expected to survive. Fortunately, he did recover from his injuries although he does not have any recollection of this brutal assault. [ 5 ] The probation officer spoke to the victim on March 29, 2013. At page 5 he outlined his injuries: Wayne informed this writer that he was in a drug induced coma at the Royal University Hospital in Saskatoon for one month. After being awoken from his coma he was moved to the City Hospital in Saskatoon where he stayed for another month.

According to Wayne his injuries included; 4-5 broken ribs, a punctured lung, damaged pancreas, damaged liver, brain injury and vision problems. Wayne explained that the doctors had to open his abdomen because he was bleeding internally. When they opened him up, his abdomen was filled with blood. Apparently one of his arteries had burst which caused the internal bleeding. According to Wayne, the injuries to his pancreas and liver resulted in him developing acquired diabetes which he has to take medication to control.

Wayne said the doctors told him that they typically only see the type of injuries he suffered in an automobile accident. The doctors told Wayne’s family that they didn’t think he would survive his injuries. [ 6 ] Mr. Kroetsch has a hard time with his speech and struggles with his vocabulary since the assault. Balance is also an issue. He said he often staggers when he walks because he gets dizzy, yet he is grateful he is able to walk. He is now experiencing difficulty with his eyesight and experiences double vision. Mr. Kroetsch will never be able to find work in his field of carpentry because of his injuries.

He was not able to speak about the emotional impact that he suffers. He is concerned that the assailants have it out for him and will not walk down the street at night because he is afraid they will come after him and he can no longer defend himself. [ 7 ] The victim impact statement provided by one of his children indicates the impact this offence has had on the family and their father. She indicates he is not the same person and will never be the same in her opinion. The family was understandably upset and worried as to whether their father would recover from his injuries.

CIRCUMSTANCES OF THE ACCUSED [ 8 ] A Pre-Sentence Report was prepared in this matter. Mr. Flett is a 23 year old man. His criminal record is not long, beginning in 2007 as a youth. However, it is a record of violence. He was convicted of assault causing bodily harm in March 2007 as a youth and received a short period of probation. In May 2012, now an adult, he was convicted of three counts of common assault and given a 12 month conditional sentence order on each. At the same time he was also convicted of assault with a weapon and given a 12 month conditional sentence order concurrent.

He was in the community on this conditional sentence order when he committed the current offences. [ 9 ] He has two children but he and their mother are not currently in a relationship. He last saw his children in the summer of 2012. No details were provided as to why his relationship with his wife and children has not sustained.

[10] With respect to Gladue issues, Mr. Flett had always maintained in previous discussions with the probation officer that hedidn’t experience any violence or abuse in his family home. However, he now advises that his father abused alcohol when he was youngand it caused problems in the family home as his father would get into fights with his mother and then would leave the family home fora few days at a time when drinking. Mr. Flett advised that he never felt forced to leave his home community nor did he experiencepoverty. He has never attended a residential school. [11] With regard to racism, Mr.

Flett told the probation officer that the victim of the offence was being racist towards him as hecalled him a disparaging name related to his ancestry. During sentencing submissions, counsel for Mr. Flett agreed that the victim madeno such comment to Mr. Flett. The Crown indicated that the girlfriend of the victim is a First Nations woman. It is clear Mr. Flettfabricated the comment in an effort to rationalize his behaviour, if only to himself, and to somehow cast blame on the victim. In otherwords, the victim deserved to be beaten for offending Mr. Flett. [12] Mr.

Flett’s overall risk for general re-offending was assessed as being high, and individuals in that category re-offended atapproximately an 80 percent rate over a three year period while in the community. The report notes that when Mr. Flett is compared to the remainder of the Saskatchewan offender population, he is assessed to be at the 92nd percentile, which means only 8 percent ofSaskatchewan offenders were assessed as having more risk factors. The major risk factors for Mr.

Flett include his attitude towards hisoffence and the justice system, lack of insight and self-management strategies regarding his offending behaviour, drug and alcohol use,association with negative peers, anti-social behaviour and lack of employment. POSITION OF THE PARTIES [13] Both counsel recognize Mr. Flett faces a significant period of incarceration for these offences. The offence of robbery carriesa maximum punishment of life imprisonment.

The offence of aggravated assault provides for a term of imprisonment not exceeding 14years. [14] Crown counsel submits that a sentence of eight years in addition to any time already served is appropriate. Aggravatingfactors include that the accused was the adult and the lead figure who involved a youth in this horrible beating of Mr. Kroetsch. Theserious injuries suffered by the victim and the trauma his girlfriend endured as he was beaten in front of her also call for a significantsentence.

The Crown submits the accused is not remorseful as he initially said he was sorry but then tried to say the victim brought it onby making a racial slur. The Crown requests the Court to stress deterrence and denunciation in this matter. [15] Defence counsel notes that the accused was remorseful as illustrated by the letter he wrote shortly after the police arrested himwherein he took responsibility for the assault and apologized. He was cooperative and has entered a guilty plea and thus the victim didnot have to testify.

He acknowledges the victim was severely injured but disputes that the diabetes has a causal link to the assault by Mr.Flett. Counsel for the accused notes his criminal record is not long and contains less serious offences. This was not a planned robberybut something that occurred on the spur of the moment. Things however went horribly awry and Mr. Kroetsch suffered. [16] Taking into account all of the circumstances and the accused having entered a guilty plea, defence counsel submits that asentence of 5-6 years incarceration is appropriate.

ANALYSIS [17] The Saskatchewan Court of Appeal has repeatedly stated that crimes of violence will be visited with significant terms ofimprisonment. The Court reiterated this in R. v. Gordon, 2011 SKCA 130, at para. 18 and 19, in reference to other cases of robbery. Noting passages from R. v. Stonechild (1985), (SK CA), 128 Sask. R. 210 and R. v. Cappo (1994), (SK CA), 120 Sask. R. 309, at paragraph 19, the Court stated from Cappo, supra: This Court has repeatedly indicated that offences of this nature will be treated severely.

This is the only means available to the Courts todiscourage crimes of this nature which involve victims who are particularly vulnerable to such an attack. The range of sentences is suchthat three years is at the lower end of the scale for an offence of this nature.

[ 18 ] In Gordon , the Court of Appeal upheld a five year sentence of incarceration imposed by the sentencing judge where the accused stabbed a vehicle owner in the neck and wrists in order to steal his vehicle. In that case, the Court observed it was premeditated. [ 19 ] In R. v. Chaske , 2011 SKCA (Sent Dig) 10, the accused was sentenced to a period of 10 years incarceration, with credit given for 2.5 years spent on remand. His appeal to the Saskatchewan Court of Appeal was dismissed. There the accused had gotten into an argument with the victim at a party which escalated into a fight.

While the victim swung first, the accused swung back and when a third person joined the fray, the two were able to get the upper hand and threw the victim to the ground. While the co-accused retreated, the appellant continued to kick the victim in the head a number of times putting him into a coma. At the time of sentencing, the victim remained in a coma and was not expected to recover. The accused had a criminal record dating back to 2003 which contained one conviction for assault, one conviction for uttering threats, and one conviction for carrying a concealed weapon. [ 20 ] In R. v.

Morash , 2006 SKCA 59 , a sentence of six years and 11 months incarceration was upheld. The accused had no previous criminal record. He was part of a group of young people who attended to a residence, broke down the door, entered the house and began fighting with the occupants. The accused and another went upstairs looking for someone who had thrown a beer bottle at their car. They found two men hiding in a closet, but they said they had not thrown the bottle. The accused struck one of the men with a whiskey bottle and then attacked the other man.

He struck him and knocked him down and then began kicking him in the head, rendering him unconscious. That victim suffered severe brain damage and loss of memory and has speech and language problems. He had recovered to a certain degree but will never fully recover from the attack. In addition to being charged with this aggravated assault, the accused was also charged with break and enter with intent to commit an indictable offence and assault with the use of a weapon. [ 21 ] In R. v.

Stonechild , 2010 SKCA (SentDig) 26, the 26 year old female was sentenced to 11 years incarceration with one year credit leaving 10 years incarceration to be served on charges of two counts of robbery, a weapons offence and breach of probation. The offence involved a home invasion where the accused and others rushed inside a house and stole items from the victims. The second robbery occurred when the co-accused approached the victim and assaulted her, but the victim managed to get away and run to her apartment. The accused followed her and broke down the door, beat her and then bound and gagged her.

The accused eventually left with items belonging to the victim. The accused’s criminal record was minimal with one conviction for assault. Her appeal was dismissed. DECISION [ 22 ] In the circumstances of Mr. Flett, the assault upon Mr. Kroetsch was entirely unprovoked and occurred simply because Mr. Flett wanted more alcohol. His moral culpability is high. Although the offence lacked planning and deliberation, and was not premeditated, it was still a horrific attack on a completely innocent member of the community. Mr.

Flett went searching for alcohol and was prepared to do whatever it took to obtain it, including severely injuring Mr. Kroetsch when he was already down on the ground and unable to defend himself. [ 23 ] Mr. Flett does not appear to grasp the problem he has with respect to alcohol consumption and anger management. His violent tendencies are borne out by the vicious attack the victim suffered at his hands, as well as the criminal record for violent offences that Mr. Flett has accrued in a short time.

The public expects that they can go for a walk in their communities at any time of the day or night without fear they will be attacked. By his actions, Mr. Flett has taken away that sense of freedom, especially for Mr. Kroetsch. [ 24 ] It is an aggravating factor that Mr. Flett was under a conditional sentence order at the time of this offence.

He was serving a jail sentence in the community, under strict terms including not to possess or consume alcohol and to remain in his residence between the hours of 10 p.m. and 7 a.m. - conditions he knowingly violated. [ 25 ] I find it is also an aggravating factor that Mr. Flett tried to blame the victim by fabricating that the victim made a racial slur towards him. In my opinion this indicates Mr. Flett has little remorse for his actions and prefers to blame others rather than accepting responsibility for his own actions. While Mr.

Flett had previously written a letter of apology to the victim, this later effort to blame the victim casts doubt on Mr. Flett’s sincerity in apologizing for his behaviour. [ 26 ] In mitigation, he has entered a guilty plea and saved the victim from having to testify. The attack was not premeditated but

occurred on the spur of the moment. I am mindful of s. 718 and 718.2 of the Criminal Code , especially the direction given to sentencing judges regarding Gladue factors. Here Mr. Flett has not had a tragic upbringing as we often see when Gladue factors are addressed for aboriginal offenders. Although there was disruption in his home as he was growing up, he indicated that he did not suffer from poverty or racism. Thus, the Gladue factors are given little weight in this case. [ 27 ] Given the severe injuries suffered by the victim and that he nearly died as a result of Mr.

Flett’s actions, a significant period of incarceration is warranted. In the circumstances of this case, deterrence and denunciation are paramount. Mr. Flett’s rehabilitation is not the main focus as he has shown he has little regard for other persons and is quick to lash out in a violent nature to accomplish his goals, in this case to obtain more alcohol to continue his drinking. [ 28 ] The conditional sentence order the accused was subject to was eventually terminated and he was ordered to serve the remainder of his sentence in custody.

That period of custody expired on March 18, 2013 and the accused has thus accumulated approximately two months remand credit towards his sentence. [ 29 ] In all of the circumstances I find that a fit sentence of 7 years and 6 months is appropriate. Giving the accused two months credit for time spent on remand, I sentence him to a further period of incarceration of seven years and four months, on each charge, concurrent. I. Cardinal, J