R. v. L.M.S. Date:, 2017 BCPC 250

Citation: R. v. L.M.S. Date: 20170705 2017 BCPC 250 File No: 19893-2-C Registry: Surrey IN THE PROVINCIAL COURT OF BRITISH COLUMBIA Youth REGINA v. L.M.S. ORAL REASONS FOR SENTENCE OF THE HONOURABLE JUDGE G.S. GILL RESTRICTION ON ACCESS s. 118 & s. 110 YCJA s. 517(1) CCC Counsel for the Crown: W. Stephen, Q.C., and L. Wold Counsel for the Defendant: K. Westell and K. Banta, Law Student Place of Hearing: Surrey , B.C. Date of Hearing: July 5, 2017

Date of Judgment: July 5, 2017 [ 1 ] On Information [omitted for publication]-2-C, in the Youth Justice Court of British Columbia, L.M.S. (“Mr. S.”), a young person within the meaning of the Act , was charged with having committed the second degree murder of J.S., pursuant to s. 235(1) of the Criminal Code . [ 2 ] On June 23 rd , Mr.

S. entered a plea of not guilty to that charge but guilty to the lesser offence of manslaughter, pursuant to s. 236(b). [ 3 ] Counsel today have presented the court an agreed statement of facts as to what happened and also a submission on sentencing that was jointly submitted in all respects. The statement of facts sets out some of the personal circumstances of the victim and the young person, as well as, in a somewhat

summary fashion, the circumstances of the offence. [ 4 ] In December of 2014, J.S. and L.M.S. were both students at [omitted for publication] Secondary School and they knew one another. During the afternoon of December 18 th , they met at a location near the 16300 block of 88 th Avenue in Surrey. It was apparently during the course of a heated discussion involving some matter between them that Mr.

S., using a knife in his possession, inflicted serious bodily harm to J.S., sufficient to cause his death a short time later. [ 5 ] The injuries consisted of seven stab wounds to the victim's head and three stab wounds to the lower back. There were multiple cuts to the face, head and back and a superficial cut to the palm of the left hand, along with multiple abrasions. [ 6 ] There are many aggravating factors to consider in this case. [ 7 ] The act itself was senseless, perpetuated by Mr. S. on a person much smaller and lighter than he, and having been pursued by him past any point where Mr.

S. could have been concerned about his own safety. [ 8 ] The wounds were multiple and were inflicted to vulnerable areas of J.S.’s body. They involved the use of significant force, enough to break off the tip of the knife being used and to leave it imbedded in the victim's skull. [ 9 ] Mr. S. fled the scene with the knife despite the obvious distress by J.S., failing to offer any assistance. [ 10 ] Also, there is Mr.

S.'s youth record, which I will address later in these reasons. [ 11 ] This case involves violent conduct resulting in the loss of a promising young life and leaving behind both family and friends of J.S., who are now, and who will continue to be, themselves tormented and victimized.

Their loss, as reflected in the tearful impact victim statements of anguished parents, aunts, uncles and siblings that were filed and read during these proceedings, can never be measured and indeed can never be compensated. [ 12 ] The offender, who is a young person within the meaning of the Youth Criminal Justice Act , was about 17-and-a-half years old at the time of this offence. Having come to B.C. in 2012, he lived partly with his uncle and partly with his girlfriend. His parents and siblings remain in Nova Scotia. [ 13 ] He has had a troubled, violent background, as revealed in his youth record.

That record includes, between the years 2011 and 2013 in Nova Scotia, two assault convictions and three robbery convictions, as well as a number of compliance-related entries. [ 14 ] Mitigating factors identified to the court included the fact of the guilty plea, as well as Mr. S.'s relative youth. His counsel indicates that Mr.

S. expresses remorse for what he did, indicating it was not something he had planned or thought would happen during the course of that meeting. [ 15 ] Having reviewed the circumstances of the offence and those of the offender, I will briefly address the applicable law, in particular, in the context of this being a joint submission. [ 16 ] Canadian sentencing law requires the consideration of a variety of factors. Often those factors do not line up in the same direction and, therefore, must be balanced one against the other.

The factors include denouncing unlawful conduct, specific and general deterrence of offenders, protection of the public, also rehabilitation of offenders, reparation and the promotion of a sense of responsibility and acknowledgment of harm done to victims and to the community. [ 17 ] There is also case law which I must be mindful of providing guidance on the applicability of joint submissions on sentence. As noted in the Supreme Court of Canada decision of R. v.

Anthony-Cook , and paraphrasing from paragraph 34 therein, joint submissions are based on resolution discussions, not all of which can be related to the court in every detail and which should not be rejected lightly. Rejection should only occur where the joint submission is so far detached from an objectively reasonable outcome that it could be reasonably regarded as a breakdown in the justice system. [ 18 ] In the present case, Mr. S. stands before the court as a youth.

If sentenced according to law under the applicable legislation, the maximum sentence this court could impose would be that of three years' incarceration. Counsel jointly submit that this young person ought to be sentenced not as a youth, but rather exceptionally, as an adult. The court may accept or reject that joint submission. [ 19 ]

Section 72 of the Youth Criminal Justice Act allows for the imposition of an adult sentence where the circumstances are such that the presumption of diminished moral blameworthiness that would normally be attributable to a young person is rebutted and where a youth sentence would not be long enough to hold him accountable. [ 20 ] I agree that, based on the facts and submissions before me, the conduct of this young person represents a very high degree of

culpability and moral blameworthiness and more than any sentencing as a youth could address. I say that, because Mr. S. has a record for violence that I reviewed earlier, as well as an entry for assault causing bodily harm following the index offence and for which he was sentenced as an adult to a term of four months' custody. As has also been noted, he was, on the date in question, only months away from his 18 th birthday. [ 21 ] Under these circumstances, I accept the joint submission that Mr.

S. be sentenced as an adult. [ 22 ] The sentencing range for crimes of manslaughter fall from a suspended sentence at the low end, in other words, no incarceration, to life imprisonment at the highest end. That is a pretty broad range. In other words, it must necessarily be so given the many types of circumstances under which this particular type of offence can arise. It is also important, I believe, at this juncture, to say that when considering a fit sentence there must be a distinction drawn between retribution on one hand and vengeance on the other hand.

Here, I can do no better than to quote from the Supreme Court of Canada decision in R. v. C.A.M. where Lamer C.J. emphasized that vengeance has no place in any civilized system of sentencing. At paragraph 34, he said this: Retribution in a criminal context, by contrast -- Comparing it to vengeance: -- represents an objective, reasoned and measured determination of an appropriate punishment which properly reflects the moral culpability of the offender, having regard to the intentional risk-taking of the offender, the consequential harm caused by the offender, and the normative character of the offender's conduct.

Furthermore, unlike vengeance, retribution incorporates a principle of restraint; retribution requires the imposition of a just and appropriate punishment, and nothing more . [ 23 ] The submission made to the court is that Mr. S. be sentenced to a term of eight years' incarceration less time served. It is clear to me that this submission is one based on extensive submissions between counsel. Clearly what this offender did was reprehensible and deserving of condemnation. His actions resulted in the taking of a promising young life, and left in its wake lasting impact on family, friends and the community.

The joint submission is one, nonetheless, between experienced counsel attempting to balance this young person's criminal act against the realities of proving it at trial. [ 24 ] Having regard for all of the factors, I am required to consider, by law, and which I have outlined, including the terrible circumstances of the offence, the principles of sentencing I have reviewed with an emphasis on the need to denounce and deter, the painful victim impacts, the relative youth of the offender and his corresponding prospects for eventual rehabilitation and a guilty plea to the lesser offence of manslaughter in the face of trial uncertainty, I conclude that a term of incarceration of eight years to be a fit sentence. [ 25 ] Mr.

S., would you please stand to receive your sentence? [ 26 ] Sir, despite your status as a young person, for your admitted guilt in committing the manslaughter of J.S., I sentence you to an adult term of eight years' incarceration. You will be credited any time thus far served, which I fix, by consent of the parties, at 13 months. [ 27 ] Additionally, there will be an order removing any ban otherwise applicable identifying Mr. S., an order prohibiting his possession of any firearms or other items set forth in s. 109(2)(

a) and (2)(

b) for his life, an order pursuant to s. 487.051(1) authorizing the taking of such bodily samples from you as are suitable for an analysis of your DNA. [ 28 ] I will direct that the victim fine surcharge be paid by him forthwith or otherwise, in default, the time being served concurrent to the sentence I have imposed. [ 29 ] Those are my reasons. [ 30 ] MS. STEPHEN: There is one other matter, Your Honour, and it has to do with placement.

And it has to do -- s. 76 of the Youth Criminal Justice Act sets out that when a young person is sentenced to an adult sentence, if the sentence is for two years or more, the order must be made that he be placed in a penitentiary and I'd ask that you make that order. [ 31 ] THE COURT: Any submission, Mr. Westell, on that? [ 32 ] MR. WESTELL: I don't oppose that. [ 33 ] THE COURT: Very well. I order then that the sentence be served in a federal penitentiary. (REASONS FOR SENTENCE CONCLUDED)