R. v. Massaquoi Date:, 2012 BCPC 113

Citation: R. v. Massaquoi Date: 20120405 2012 BCPC 0113 File No: 22128-5C Registry: Vancouver IN THE PROVINCIAL COURT OF BRITISH COLUMBIA REGINA v. JOHN MASSAQUOI Publication Ban as per s. 110(1), s. 111(1) and s. 129 of the YCJA and s. 486.5 of the CCC REASONS FOR SENTENCE OF THE HONOURABLE JUDGE P. CHEN Counsel for the Crown: Linda Selbie MacDonald Counsel for the Defendant: Lionel J. Farmer

Place of Hearing: Vancouver , B.C. Dates of Hearing: April 3 & 4, 2012 Date of Judgment: April 5, 2012 [ 1 ] John Massaquoi has pled guilty to: Count 1 : robbery using a restricted or prohibited firearm contrary to Section 344(1) (

a) of the Criminal Code , Count 6 : assault with a weapon, to wit a firearm, contrary to

Section 267 (

a) of the Criminal Code , Count 7 : point a firearm, whether loaded or unloaded, contrary to Section 87(1) of the Criminal Code , Count 10: possess a loaded prohibited or restricted firearm, without being the holder of an authorization or a licence under which he may possess the loaded prohibited or restricted firearm in that place and a registration certificate for the firearm, contrary to Section 95(1) of the Criminal Code . [ 2 ] Counsel have provided an agreed statement of facts. Pursuant to Section 42(9) of the YCJA Crown seeks a designation of Count 1 as a serious violent offence.

The Accused did not oppose this application. I find, on the basis of the facts submitted and agreed upon that the charge under Count 1 is a serious violent offence. [ 3 ] Crown also seeks, pursuant to Section 64(1) of the YCJA , an order that Mr. Massaquoi is liable to an adult sentence with respect to these charges. The Accused opposes this application but agrees that the statutory prerequisites for such an application have been met, i.e. that Mr. Massaquoi was over the age of 14 years at the time of the offence and that Mr.

Massaquoi would be liable to imprisonment on these charges for a term of more than 2 years. [ 4 ] Crown seeks an adult sentence equivalent to 6.5 to 7.5 years, taking into account pre-trial custody of 18 months, which Crown agrees should be credited at a ratio of 1.5 to 1. The Accused seeks a youth sentence of time served followed by an Intensive Support and Supervision Program. [ 5 ] These offences relate to a robbery of a jewellery store in the Oakridge Mall on the evening of September 30, 2010. Mr.

Massaquoi and his co-accused, R.S. and L.H., had been recruited by a criminal gang organization to commit the robbery. The gang had supplied all three co-accused with weapons, clothing and disguises. One of the gang members organizing the robbery drove the three co- accused to the mall around 8:20 p.m. and waited outside in a stolen van.

The three co-accused entered the mall through a breezeway between a senior citizens centre and a Montessori school. [ 6 ] The jewellery store’s closing time was 8:30 p.m., one-half hour prior to the mall’s 9:00 p.m. closing time. [ 7 ] Customers wishing to enter the jewellery store were required to press a buzzer to request staff to unlock the door. Mr. Massaquoi entered the store wearing a business suit. He told Witness 1, one of the 4 staff in the store, that he was getting married in a month and wanted to look at some “things”. As requested, Witness 1 showed Mr.

Massaquoi a number of expensive jewellery items and watches. Mr. Massaquoi was described by Ms. Johnson, the only other customer in the store, as being shrill and demanding and bouncing around the store like a pinball in a machine. [ 8 ] Mr. Massaquoi suddenly punched Witness 1 in the face and pulled out a gun yelling “get down!” The gun was a semi- automatic .25 caliber pistol. As Witness 1 attempted, unsuccessfully, to grab the gun, a bullet was discharged. Mr. Massaquoi then pointed the gun at another staff, Witness 2, ordered her to open the locked display cases and struck her on the head with the gun.

Witness 2 was bleeding from the head as a result of the blow and complied with the demand. Mr. Massaquoi then pointed the gun at the other two staff in the store, Witness 3 and Witness 4, and ordered them to open display cases. They complied. Witness 1 managed to push the panic button and a second shot was discharged from Mr. Massaquoi’s handgun. Mr. Massaquoi pointed the gun at Witness 1’s head on three occasions. [ 9 ] Ms. Johnson, who quickly lay prone, face down, on the ground, described Mr. Massaquoi repeatedly threatening to shoot and kill the employees if they did not comply fast enough. At one point, Ms.

Johnson felt Mr. Massaquoi was becoming so agitated that she feared she might be shot. [ 10 ] R.S. and L.H. arrived at the front doorway of the jewellery store and rushed towards the security guard. R.S. punched the security guard in the head, wearing lead-lined gloves. L.H. pointed a semi-automatic pistol at the security guard, pepper sprayed him twice and punched him in the head as well. R.S. had a balaclava ski mask pulled over his head, disguising and concealing his face. L.H. was wearing sunglasses. The security guard was blinded by the pepper spray and fell backwards, bleeding from the nose.

After they discovered that the door to the jewellery store was locked, R.S. began banging on the door and screaming to be let in while L.H. was yelling and pointing his pistol. [ 11 ] Mr. Massaquoi then forced Witness 2 to open the door and, while doing so, discharged his handgun again. The bullet travelled through the store into the open mall and, either the bullet or something dislodged by it, struck R.S. in the upper arm. R.S. then entered the store holding his upper arm and informed Mr. Massaquoi “ you hit me ”.

L.H. stayed at the entrance and, in what he described as an effort to dissuade the security guards, fired at least two shots from his pistol into the air in the open mall. [ 12 ] Civilians in the mall were observed to be “ running for cover ”, fleeing for exits or trying to hide in the mall, which was filling

with pepper spray and causing people to cough. When a second security guard arrived, L.H. charged at him, firing pepper spray at his face and temporarily blinding him. [ 13 ] Inside the store, Mr. Massaquoi continued to be agitated, repeatedly threatening to shoot the employees if they did not comply with his demands. He pointed his pistol at Witness 3’s head, shouting “ faster, faster !” Witness 3 recalled hearing him say “ I will murder all of you! ” R.S. handed bags to Witness 2 and Witness 4, ordering them to fill them with watches and jewellery. They complied. R.S. shouted at Mr.

Massaquoi to “ hurry up ” but Mr. Massaquoi ignored him and continued filling his bags with jewellery. [ 14 ] R.S. and L.H. then ran from the store into the mall and back out into the parking lot by the same route they had entered. They reached the stolen van and escaped from the mall. The stolen goods were passed off to another vehicle. The van stopped near a sky train station where the driver abandoned the vehicle, taking the weapons, disguises and discarded clothing with him on foot. R.S. and L.H. exited, boarded the sky train and went home. [ 15 ] Meanwhile, Mr.

Massaquoi was late leaving the store and had forgotten the escape route to the van. He entered the Bay store, still running with his handgun raised while passing numerous employees and customers. Mr. Massaquoi pointed his handgun at the head of a Bay employee in the menswear department and yelled “ where is the exit ?” That employee believed her life was over. She pointed towards the west exit and Mr.

Massaquoi ran through it into the parking lot, dropping watches and jewellery from his bag as he ran. [ 16 ] Constables Shahi and Vanderberg were in an unmarked vehicle responding to the 9-1-1 calls when they saw Mr. Massaquoi run into the parking lot. They could see that he fit the description of one of the suspects and that he was dropping jewellery from his bag as he ran. Mr. Massaquoi looked at the police officers and a gunshot was heard. He then began to sprint away from the officers. The officers chased after him in their vehicle up to a metre-high chain link fence. Mr.

Massaquoi turned and rushed the stationary police vehicle. Constable Shahi had exited the passenger side of the vehicle with her service pistol drawn, shouting at Mr. Massaquoi to get down on the ground. Mr. Massaquoi then raised his pistol and pointed it directly at Constable Shahi. Constable Vanderberg had by now exited the driver’s side and, at that point, Mr. Massaquoi moved his gun to point directly at Constable Vanderberg. Constable Shahi continued to shout at Mr. Massaquoi to get down on the ground. Mr.

Massaquoi then threw his gun to the ground and lay face down on the ground where he was handcuffed and subsequently arrested. [ 17 ] Mr. Massaquoi has remained in custody since his arrest. [ 18 ] The criteria to be considered and the test to be applied in determining whether an adult sentence is required for a young accused is to be found in Section 72(1)(

b) of the YCJA . 72(1) In making its decision on an application heard in accordance with

section 71, the youth justice court shall consider the seriousness and the circumstances of the offence, and the age, maturity, character, background and previous record of the young person and any other factors that the court considers relevant, and ...... (

b) if it is of the opinion that a youth sentence imposed in accordance with the purpose and principles set out in subparagraph 3(1)(b)(ii) and

section 38 would not have sufficient length to hold the young person accountable for his or her offending behaviour, it shall order that an adult sentence be imposed. [ 19 ] Pursuant to Section 72(2), the onus of satisfying the court as to the matters referred to in subsection 1(

b) is borne by the applicant, i.e. the Crown. [ 20 ] Section 72(1)(

b) directs the court back to the purpose and principles set out in Section 3(1)(b)(ii) and

Section 38 of the Act . [ 21 ] Section 3(1)(b)(ii) of the Act states: 3(1) The following principles apply in this Act : ..... (

b) the criminal justice system for young persons must be separate and apart from that of adults and emphasize the following: ..... (ii) fair and proportionate accountability that is consistent with the greater dependency of young persons and their reduced level of maturity. [ 22 ]

Section 38 of the Act states: 38(1) The purpose of sentencing under

section 42 (youth sentences) is to hold a young person accountable for an offence through the imposition of just sanctions that have meaningful consequences for the young person and that promote his or her rehabilitation and reintegration into society, thereby contributing to the long-term protection of the public.

(2) A youth justice court that imposes a youth sentence on a young person shall determine the sentence in accordance with the principles set out in

section 3 and the following principles: (

a) the sentence must not result in a punishment that is greater than the punishment that would be appropriate for an adult who has been

convicted of the same offence committed in similar circumstances; (

b) the sentence must be similar to the sentences imposed in the region on similar young persons found guilty of the same offencecommitted under similar circumstances; (

c) the sentence must be proportionate to the seriousness of the offence and the degree of responsibility of the young person for thatoffence; (

d) all available sanctions other than custody that are reasonable in the circumstances should be considered for all young persons, withparticular attention to the circumstances of aboriginal young persons; and (

e) subject to paragraph (c), the sentence must (

i) be the least restrictive sentence that is capable of achieving the purpose set out in subsection (1), (ii) be the one that is most likely to rehabilitate the young person and reintegrate him or her into society, and (iii) promote a sense of responsibility in the young person, and an acknowledgement of the harm done to victims and the community.

(3) In determining a youth sentence, the youth justice court shall take into account (

a) the degree of participation by the young person in the commission of the offence; (

b) the harm done to victims and whether it was intentional or reasonably foreseeable; (

c) any reparation made by the young person to the victim or the community; (

d) the time spent in detention by the young person as a result of the offence; (

e) the previous findings of guilt of the young person; and (

f) any other aggravating and mitigating circumstances related to the young person or the offence that are relevant to the purpose andprinciples set out in this section. [23] In the case of R. v. O(A), (2007) 2007 ONCA 144 , 218 CCC (3d) 409, the Ontario Court of Appeal discusses theconcept of accountability in the context of Section 72(1) at paragraphs 46 and 47: 46. In our view, accountability in this context is the equivalent of the adult sentencing principle of retribution as explained by LamerC.J.C. in R. v.

M. (C.A.) (1996), (SCC), 105 C.C.C.(3d) 327 (S.C.C.) at paras. 80 and 81: Retribution in a criminal context, by contrast, represents an objective, reasoned and measured determination of an appropriatepunishment which properly reflects the moral culpability of the offender, having regard to the intentional risk-taking of the offender, theconsequential 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 nothingmore. .....

Retribution, as well, should be conceptually distinguished from it’s legitimate sibling, denunciation. Retribution requires that a judicialsentence properly reflect the moral blameworthiness of that particular offender. The objective of denunciation mandates that a sentenceshould also communicate society’s condemnation of that particular offender’s conduct. In short, a sentence with a denunciatory elementrepresents a symbolic, collective statement that the offender’s conduct should be punished for encroaching on our society’s basic code ofvalues as enshrined within our substantive criminal law. 47.

In our view, for a sentence to hold a young offender accountable in the sense of being meaningful it must reflect, as does aretributive sentence, “the moral culpability of the offender, having regard to the intentional risk-taking of the offender, the consequentialharm caused by the offender, and the normative character of the offender’s conduct”. We see no other rational way for measuringaccountability. [24] At paragraph 50 of R. v. O(

A) the court states: ... And in R. v. Ferriman, [2006] O.J. No 3950 (S.C.J.) at paragraph 38, McCombs J. said that for a sentence to hold a young personaccountable it must achieve two objectives: It must be long enough to reflect the seriousness of the offence and the offender’s role in it, and it must also be long enough to providereasonable assurance of the offender’s rehabilitation to the point where he can be safely reintegrated into society. If the Crown provesthat a youth sentence would not be long enough to achieve these goals, then an adult sentence must be imposed. [25] At paragraphs 32 and 33 of R. v.

O(A), the court made it clear that the onus on the Crown with respect to Section 72(1)(

b) ofthe Act does not require proof beyond a reasonable doubt. The youth justice court may impose an adult sentence once “it is of theopinion” that a youth sentence is insufficient. The onus on the Crown is merely to satisfy the court of the matters required for such an

opinion. [ 26 ] Although he was not the lead hand in the robbery, Mr. Massaquoi played a central role. It was Mr. Massaquoi who entered the store first and initiated the robbery inside. Mr. Massaquoi was the most agitated and volatile of the group, pointing his gun at the heads of the staff many times, shouting and threatening to kill, shoot and murder them, striking one of the female staff in the head at least once causing it to bleed and recklessly firing several shots from a handgun. At least one of the bullets escaped from the store, striking one of the co-accused outside the store, in the upper arm. Mr.

Massaquoi’s actions terrorized the staff. The actions of all three co- accused terrorized other staff and customers in the mall which was filling with pepper spray and causing people to cough. Customers and staff were observed “ running for cover ”, fleeing in panic and trying to hide as a result of the gunfire. Although L.H. also pointed his gun at the head of the security guard before punching and pepper-spraying him, Mr. Massaquoi pointed his gun at the heads of everyone in the store while threatening them with death.

After leaving the jewellery store, he ran through the mall, passing numerous customers and staff, with his handgun raised. He pointed his gun at the head of a Bay employee when he got lost (the complainant in Count 6) and later at each of the two police officers in the parking lot. [ 27 ] These are serious offences. The circumstances of these offences and Mr. Massaquoi’s role in the offences were particularly egregious. This was a robbery of a jewellery store in a busy shopping mall full of customers and staff. [ 28 ] Many innocent persons were put at grave risk as a result of Mr.

Massaquoi’s actions during the robbery. Innocent persons were traumatized by his actions. Although no victim was seriously injured during the robbery, the violence – particularly by Mr. Massaquoi – was gratuitous. He struck a petite female employee – who was showing no resistance - on her head, causing it to bleed. He fired at least three shots from his handgun indiscriminately while still inside the jewellery store, any one of which could have had far graver consequences. This was a brazen and dangerous robbery. All of the co-accused displayed a callous disregard for public safety.

It is extremely fortuitous that no one was killed or seriously injured that day as a result of his actions. [ 29 ] In R. v. Brogan , 1999 BCCA 278 , Ryan, J.A. described the range of sentences available for adults in offences such as this at paragraph 10: “We have been given a number of cases where robbery with violence has been committed by young men such as Mr. Brogan. An analysis of the range produced by these cases is that the sentencing range is somewhere between 2 and 9 years.

The age of the offender, his previous criminal experience, the level of violence, the number of offences, the level of premeditation, whether the perpetrator was disguised or not, the type of weapon used and how it was used, the possibility of rehabilitation, the requirement of deterrence in a particular community, are some of the factors which serve to distinguish one fact pattern from another. None of the cases drawn to our attention fits Mr. Brogan’s situation exactly, none could.” [ 30 ] I turn now to Mr. Massaquoi’s personal circumstances.

I have reviewed the pre-sentence report prepared by probation officer Gurpreet Grewal, the psychological report prepared by Dr. Hemphill and the psychiatric report prepared by Dr. Janke. [ 31 ] Mr. Massaquoi was born in Sierra Leone. He has 6 siblings – 4 older brothers and 2 sisters. Little information is available about the sisters and there appears to have been little or no contact with them or his mother for many years. Collateral information provided by his mother to a school counsellor in 2005, shortly after the family’s arrival, indicates they had lived through a brutal civil war in which Mr.

Massaquoi’s father, grandparents, aunts and uncles were murdered or injured. His eldest brother witnessed his father’s murder. His mother sent Mr. Massquoi to live with a friend in Guinea when he was about 2 years old. Eventually the rest of the family escaped to Guinea where they remained for about 4 years prior to finding refuge in Canada in 2004. [ 32 ] The family appeared to disintegrate very quickly after their arrival in Canada. Mr. Massaquoi’s brothers moved out. Initially Mr. Massaquoi moved between his mother’s home and his brother Tommy. It is unclear when his relationship with his mother ended but Mr.

Massaquoi has told Dr. Hemphill, the writer of the psychological report, that he lived with Tommy from about age 10 (the age he was when he immigrated to Canada) until age 13 or 14. After that he moved in with his 2 nd brother Mohammed and resided there until his arrest. [ 33 ] Mr. Massaquoi did not speak English when he arrived in Canada but his difficulties in school were compounded by behavioural difficulties. According to Dr. Hemphill’s report, a conduct report from Mr.

Massaquoi’s first 6 1/2 months in school listed 21 incidents for class disruption, fighting, inappropriate behaviour, intimidation/harassment and vandalism. It did not help that Mr. Massaquoi was enrolled in three different elementary schools during his first 2 years in Canada. [ 34 ] According to Dr. Janke’s psychiatric report, Mr. Massaquoi stated that he began smoking marijuana in early 2010 and was smoking daily, up to four times per day by the time of these offences. It was at that time that he began associating with an older male named Tony, who was a member of a criminal gang. Tony provided Mr.

Massaquoi with marijuana without charge. According to the pre-sentence report, Mr. Massaquoi estimated that he had probably smoked over $1,500 of Tony’s marijuana by the time of these offences. Mr. Massaquoi indicated to the probation officer that he “felt like I owed him” when Tony asked him to participate in this robbery that he had planned. Besides feeling indebted to Tony for the marijuana he had given him, Mr. Massaquoi also felt intimidated by him and told the probation officer “I thought if I didn’t do it somebody might shoot me”. [ 35 ] Dr. Janke described Mr. Massaquoi as a very vague historian.

I find he was also very inconsistent. Dr. Janke’s report indicates that Mr. Massaquoi would provide different versions of events in different interviews. Some information was only able to be elicited after he was confronted with collateral information contradicting his earlier statements. [ 36 ] Defence Counsel submitted that Mr. Massaquoi’s vagueness and inconsistency may be attributable to his tumultuous upbringing, his low cognitive ability and the effects of his heavy marijuana use.

That might be understandable with respect to his recollection of events earlier in his life, but even his statements to the report writers regarding the offence are inconsistent. [ 37 ] Mr. Massaquoi stated to Mr. Grewal that he felt like he was coerced into committing the offences. On the other hand, he also

told Mr. Grewal “I did it for weed and girls and stuff like that.” He acknowledged that he was promised $25,000 for the robbery. [ 38 ] Mr. Massaquoi insisted to Dr. Janke that Tony only spoke to him of the robbery on the day of the event. However, in his interview with Mr. Grewal, he stated he had attended a party at Tony’s residence two weeks prior to the offences and was informed of the robbery plan at that time. [ 39 ] In his initial interview with Dr. Janke, Mr. Massaquoi could not remember if he had said anything to the police after he was arrested.

On his second interview he stated that he had not said anything to the police at all and specifically denied the comments that are attributed to him in the agreed statement of facts. [ 40 ] It was not until the video clips from the jewellery store’s surveillance cameras were reviewed with him by Dr. Janke that Mr. Massaquoi acknowledged “hitting the girl once”. It was not until Dr. Janke directly confronted him that he acknowledged that he had possibly struck the male clerk he was initially dealing with. [ 41 ] Dr. Janke, in his report, diagnosed Mr.

Massaquoi with “substance abuse disorder, marijuana”. [ 42 ] Defence counsel has submitted that the court should consider reports of Mr. Massaquoi’s immaturity in considering the appropriateness of an adult sentence. [ 43 ] I find the reports are inconsistent with respect to Mr. Massaquoi’s level of maturity. Dr. Hemphill described Mr. Massaquoi at page 24 of his report that: In terms of cognitive development, John is less developed intellectually than similar-aged peers and individuals housed in adult correctional facilities.

In terms of emotional maturity, John presents as emotionally underdeveloped and does not have close emotional connections with anyone. [ 44 ] At page 25, Dr. Hemphill concluded: Taken together, John is physically mature for his age, but he is immature with respect to cognitive, emotional, and social development. [ 45 ] However, at page 7 of Dr. Janke’s report, Mr.

Massaquoi is described as presenting to corrections staff while in custody as follows: He presented to staff as being much more streetwise and showing more aggressive thoughts and comments than he did when being formally assessed. [ 46 ] At page 8 of the pre-sentence report, Mr. Mueller, case management officer at Burnaby Youth Custody Services, was quoted as stating that “John appears that he is mature beyond his years”. Later on that same page, Mr. Grewal stated, “John evinced a mature and calm attitude when interviewed on two occasions by this writer.” [ 47 ] Dr. Janke and Dr. Hemphill both refer to Mr.

Massaquoi’s lack of social and emotional support. At page 8 of his report, Dr. Janke wrote: There is no indication that Mr. Massaquoi, in fact, has been able to form meaningful attachments to any adult. His relationship with Tony appears to be one more of convenience without any true bond or connection being formed. [ 48 ] Later on that same page, Dr. Janke reported: Our observations with him suggest that he forms very shallow attachments and there is no meaningful emotional investment. [ 49 ] At page 9 of his report, Dr. Janke provides the following recommendation: As indicated above, although Mr.

Massaquoi has biological relatives living in the Lower Mainland, his connection to them is tenuous at best, and it is unclear if they provide him with any meaningful support. It is more likely than not that social supports will need to be provided by outside agencies for Mr. Massaquoi. [ 50 ] Similarly, at page 8 of his report, Dr. Hemphill wrote, “it is important that John has a sense of belonging”. On that same page, Dr. Hemphill added: John’s poor social connectedness and eagerness to fit in could be detrimental to him doing well upon release if he gets involved again with gang-associated individuals.

[ 51 ] This is not surprising in light of what we know about Mr. Massaquoi’s upbringing and personal history. His father was murdered when he was a young child. He was separated from his birth mother at approximately 2 years of age and sent to live with a friend of his mother in Guinea, in order to separate him from the violence and brutality of the civil war in Sierra Leone. He was reconnected with his mother when the rest of his family managed to escape to Guinea, when he would have been approximately 6 years old.

He immigrated with his family to Canada when he was 10 but that family dissolved and his mother abandoned him when he was 11. He has not seen his mother for many years. Despite this family history, there has been little intervention or assistance from the Ministry for Children and Families and he has spent only about 6 months in foster care. Mr. Massaquoi has spent the last 5 years of his childhood basically on his own with little guidance or assistance. [ 52 ] In my view, the observations of Dr. Hemphill and Dr. Janke represent a real risk to Mr. Massaquoi and to society, if Mr.

Massaquoi is released prematurely and that a considerable amount of work is required to promote his rehabilitation prior to his release. [ 53 ] I find, from the reports of Mr. Grewal, Dr. Janke and Dr. Hemphill, that Mr. Massaquoi presents as a young man who has had a difficult background and upbringing. I find that he has limited insight and self-awareness and lacks motivation. At the same time, I find that he has, at times, been evasive and having limited regard for the truth. Some of this may be attributable to his lack of connectedness, his lack of supports and, perhaps, the lack of positive role models.

However he has also demonstrated a capacity for aggression and impulsiveness that is concerning. [ 54 ] Dr. Janke described at page 9 of his report, the supports that would be conducive to Mr. Massaquoi’s rehabilitation: In terms of appropriate services necessary to him, Mr. Massaquoi would benefit from education that acknowledged his cognitive limitations. He would function best in a setting where he would be given practical vocational training that would give him the ability to support himself in a pro-social fashion.

He will benefit from drug and alcohol counselling focussing obviously on marijuana in his particular circumstances. He would benefit from general counselling aimed at dealing with criminogenic factors in his history. His limited cognitive abilities and limited ability to form empathetic relationships would limit the use of formal psychotherapy, but he would benefit from counselling directed on a more cognitive behavioural approach that would include elements directed at violent offending. [ 55 ] With respect to the application under

section 72 of the Act for an adult sentence to be imposed, I agree with the view of McCombs, J. in Ferriman as cited in R. v. O(

A) above. Mr. Massaquoi’s sentence must be long enough to reflect the seriousness of the offence and his role in it, and it must also be long enough to provide reasonable assurance of Mr. Massaquoi’s rehabilitation to the point where he can be safely reintegrated into society. [ 56 ] I am satisfied, on the basis of the authorities, the reports provided and the facts as agreed, that a youth sentence would not be sufficiently long to achieve either of these goals and that an adult sentence is required. [ 57 ] Mr.

Massaquoi was 2 weeks short of his 16 th birthday at the time of the offences – the youngest of the 3 co-accused. He has no prior criminal history and has entered a guilty plea at his earliest opportunity. He has addressed the court and expressed his remorse for his actions. These are all mitigating factors. [ 58 ] I acknowledge that the primary focus of the Act is rehabilitation. However, once I have decided that an adult sentence is appropriate, the other sentencing principles in

Section 718 of the Criminal Code come into play, including deterrence and denunciation. [ 59 ] The circumstances of the offences and of Mr. Massaquoi’s role in them constitute the most aggravating factor in this sentencing, and require a sentence that addresses both deterrence and denunciation, as well as rehabilitation. [ 60 ] In my view a fit sentence that would be adequate to reflect the seriousness of the offences and Mr.

Massaquoi’s role in them, that would hold him accountable for his actions, and that would provide some assurance of his rehabilitation, would be a sentence of 6 years and 3 months. [ 61 ] Mr. Massaquoi, please stand. On Count 1, I hereby sentence you to a term of imprisonment for a term of 75 months.

I will credit you 28 months of pre-trial custody against your sentence which will result in a further 47 months to be served in a youth facility. [ 62 ] On count 10, I sentence you to a term of 3 years imprisonment and on each of the remaining counts, I sentence you to 2 years, all sentences to be served concurrently and in a youth facility. [ 63 ] Pursuant to Section 109(1) of the Criminal Code , I order that you are hereby prohibited from possessing any firearm, cross- bow, prohibited weapon, restricted weapon, prohibited device, ammunition, prohibited ammunition or explosive substance for a period of 10 years. [ 64 ] Pursuant to

Section 487.051(1) (

a) of the Criminal Code , I order that you provide such samples of bodily substances are reasonably required for forensic DNA analysis. [ 65 ] Pursuant to Section 34(7)(b)(ii) of the YCJA , I order that all medical and forensic assessments relating to Mr. Massaquoi be provided to the provincial director. [ 66 ] Pursuant to Section 491(1) (

a) and 491 (

b) of the Criminal Code , I order that any weapons or firearms seized be forfeited to Her Majesty, to be disposed of as the Attorney-General directs. [ 67 ] Pursuant to

Section 486.5 of the Criminal Code , I order and direct that any information that could identify the following persons not be published in any document or broadcast in any way; Witness 4, Witness 3, Witness 2, Witness 1. [ 68 ] Pursuant to Section 737(5) of the Criminal Code , I hereby waive the victim surcharge.

____________________ P. Chen Provincial Court Judge