Her Majesty the Queen - v. -, 2010 SKPC 181

IN THE PROVINCIAL COURT OF SASKATCHEWAN YOUTH JUSTICE COURT Citation: 2010 SKPC 181 Date: December 23, 2010 Information: 38997568, Y348442, 31572484, 31572542 Location: Prince Albert ______________________________________________________________________________ Between: Her Majesty the Queen - and - C. C. B. Appearing: M. Pilon For the Crown C.

Tannis For the Defence Note: Sections 110 and 111 of the Youth Criminal Justice Act contain prohibitions against publication of a name or other information that would identify someone as either a young person being dealt with under the Act , or as a child or young person who is a victim or a witness in relation to an offence alleged under the Act . _________________________________________________________________________________ JUDGMENT M. M. BANIAK , J _________________________________________________________________________________ I. INTRODUCTION

[ 1 ] This youth pled guilty to the following charges: 1) That on or about the 23 rd day of April, A.D. 2010, at or near Prince Albert, did wound Todd Morin, thereby committing an aggravated assault contrary to s. 268(1) of the Criminal Code . 2) That on or about the 25 th day of June, 2010, at Debden, Saskatchewan, being at large on his Recognizance and being bound to comply with a condition of that Recognizance, fail without lawful excuse to comply with that condition, to wit, abide by a curfew of 9:00 p.m. to 7:00 a.m. daily, contrary to s. 145(3) of the Criminal Code . 3) That he did on or about the 6 th day of October, 2010, at or near Prince Albert, being at large on his Recognizance, fail to abide with a condition of that Recognizance, to wit, abide by a curfew of 9:00 p.m. to 7:00 a.m. daily, and to remain in an approved residence, fail without lawful excuse to comply with that condition, contrary to s. 145(3) of the Criminal Code . 4) That on or about the 3 rd day of November, 2010, at or near Prince Albert, being on a Recognizance, without lawful excuse fail to attend Court, contrary to s. 145(2) of the Criminal Code .

II. CIRCUMSTANCES OF THE OFFENCE [ 2 ] The accused, who was 14 years of age at the time of the offence, April 23, 2010, hailed a cab driven by Todd Morin. Unbeknownst to Mr. Morin, the accused was armed with a machete. Shortly after the cab ride commenced, the accused struck the driver in the head and face area with the machete. [ 3 ] The victim suffered considerable damage to his teeth and scarring to his face. His blocking motion with his hands resulted in deep cuts to his arms. He received 175 stitches and required considerable dental work, some of which is still uncompleted. He missed five weeks of work. III.

CIRCUMSTANCES OF THE OFFENDER [ 4 ] The pre-sentence report describes this youth as a 15 year old aboriginal who was raised by his grandmother, V. B., at Whitefish First Nation until October of 2009, after which time he came to live with his mother, V. K., in Prince Albert. He lost his father some four years ago, and his grandfather recently. [ 5 ] It appears that he has good family support - both from his immediate as well as his extended family. Despite this support, he has on occasion challenged or ignored his mother’s advice.

He is presently not in school and his academic accreditation is at a grade 7 level. [ 6 ] The pre-sentence report, the psychological report and his defence counsel’s submissions seem to paint a picture of a young man who is more of a follower than a leader. There is some suggestion that he was bullied when he lived at Whitefish First Nation. [ 7 ] On the two occasions that I observed him in Court he appeared genuinely remorseful.

It is hoped that this unfortunate experience will make him realize that even a very brief lapse in judgment can have a profound impact on the lives of many people. [ 8 ] The psychological assessment was somewhat less charitable than the pre-sentence report. Although it described him as “an intellectually capable youth”, it also profiled him as an “immature conformist” whose behaviour was difficult to predict. It also presented him as a youth who was “both heavily involved in gang-like activity and heavily involved in substance abuse”, whose ability to function in the community is at a “moderate-to-low level”.

It concluded that this youth could be viewed “... as a high risk for further criminal activity and high risk for further violence ”. (emphasis added). [ 9 ] Considering this young man’s lack of criminal involvement the conclusions arrived at in the psychological assessment are perhaps somewhat overstated. IV. CIRCUMSTANCES OF THE VICTIM [ 10 ] Mr. Todd Morin was, and again is, a cab driver in the City of Prince Albert. He was in his first week on the job when this

assault occurred. The injuries he sustained caused him to be off work for several weeks. This caused him financial problems and placed a burden on his elderly and ill parents who had to drive in to town every day to assist him in coping, both physically and emotionally.

The scars left on his body will be a constant reminder of the attack. [ 11 ] The fact that he resumed his former job attests to his resilience and strength of character - I wish him well. [ 12 ] His victim impact statement, as well as that of his parents, paint a picture of a close knit family who pulled together in the face of adversity and triumphed over it. V.

AGGRAVATING AND MITIGATING CIRCUMSTANCES [ 13 ] In considering a proper sentence the Court is obliged to take into account all aggravating and mitigating circumstances or factors. [ 14 ] The serious and violent nature of this offence, the permanent harm to the victim, and the accused’s breaches while in the community on conditions are major aggravating circumstances. [ 15 ] The mitigating factors are as follows: 1) Prior to this incident he had no criminal record; 2) He appears to be genuinely remorseful; and 3) He pled guilty and accepted responsibility for his actions. VI.

THE LAW [ 16 ] The Youth Criminal Justice Act ( YCJA ) principles of sentencing are separate and distinct from the principles applied to sentencing of adults. The YCJA emphasizes rehabilitation and reintegration into society. It recognizes a young person’s reduced level of maturity and diminished capacity. However, subsection 3 and 38(1) of the Act clearly stated that meaningful consequences should attach to offending behaviour and young persons must be held accountable.

Section 38 of the YCJA enunciates the purposes and principles of youth sentences:

(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 offence committed in similar circumstances; (

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

d) all available sanctions other than custody that are reasonable in the circumstances should be considered for all young persons, with particular 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 and principles set out in this section. [ 17 ] Section 42(5) of the YCJA says: 42

(5) The Court may make a deferred custody and supervision order under paragraph (2)(

p) if (

a) the young person is found guilty of an offence that is not a serious violent offence; and (

b) it is consistent with the purpose and principles set out in

section 38 and the restrictions on custody set out in

section 39. [ 18 ] Section 42(9) of the YCJA provides that on application by the Attorney General after a young person is found guilty of an offence, and after giving both parties an opportunity to be heard, the youth justice Court may make a judicial determination that the offence is a serious violent offence . [ 19 ] Once an offence is designated as a serious violent offence it is not open to a Court to impose a sentence of deferred custody and supervision order for any offence so designated. [ 20 ] In this case the Crown did not apply to have this offence designated as a serious violent offence, and, accordingly, the Court is not limited, or restricted, in the type of sentence it imposes.

However, even if the offence is not designated as a serious violent offence, the facts of this case clearly illustrate that the actions of the accused were seriously violent. [ 21 ] The YCJA requires that we reserve custody for the most serious offences. Even though the offence in this case was not designated a serious violent offence I regard this as a serious violent offence. The complainant was seriously hurt and the physical and psychological scars left will last indefinitely. [ 22 ] Violent or aggravated assaults involving young persons are, unfortunately, becoming more common.

I have perused the case authorities filed by defence counsel and have found some on my own. The sentences range from probation to closed custody of varying duration. The weapons used were knives, axes, baseball bats and, as in this case, a machete. The injuries were usually severe - and the one common thread is that they were all senseless, brutal and without purpose. In some cases neither the assailant nor the victim knew why they happened. In most cases alcohol or drugs were a factor. This case is no different. The attack here was senseless, violent and inexplicable. VII.

REVIEW OF SENTENCING DECISIONS [ 23 ] Review of sentencing decisions show that closed custodial sentences, although not common, are imposed where circumstances warrant: [ 24 ] In R. v. C.(J.) , [1] a 16 year old accused used a glass jar containing coins to hit a man on the side of the head. The jar broke and the victim was seriously cut and lost an eye. The accused had no criminal record and showed remorse. The offence was designated as a serious violent offence. The Court could not impose a deferred custody and supervision order.

Having to choose between closed custody and probation, the accused was sentenced to probation for a period of 18 months. [ 25 ] In R. v. M.W.G. , [2] , a 14 year old who pled guilty to breaking and entering a dwelling house, possession of a weapon and breach of probation, was sentenced to 3 months secure custody, five months open custody and 4 months supervision. [ 26 ] In R. v. S.T. , [3] the accused pled guilty to common assault, theft, assault with a weapon and 2 counts of aggravated assault.

He was sentenced to 10 months and 22 days of closed custody, followed by 8 months of community supervision and 6 months probation.

[ 27 ] In R. v. S.(S.M.) , [4] the accused was charged with robbery, assault causing bodily harm, and escaping lawful custody. He was initially sentenced to 18 months secure custody and 2 years probation. The Saskatchewan Court of Appeal increased the sentence to 21 months secure custody but reduced the period of probation to one year. [ 28 ] In R. v. M.(T.) , [5] the accused was one of five involved in a home invasion where the occupant was badly beaten. The accused was 17 years old with a fairly lengthy criminal record.

He was sentenced to 14 months secure custody, 7 months community supervision, and 3 months probation. The Saskatchewan Court of Appeal dismissed his sentence appeal. [ 29 ] In R. v. (W.J.) , [6] the accused was a 15 year old male addicted to alcohol and drugs. He had a criminal record. He violently assaulted his girlfriend. She was seriously injured. He was initially sentenced to 8 months closed custody and 4 months community supervision. The Crown’s appeal was allowed to the extent that a probation period of 6 months was added to the sentence. [ 30 ] In R. v.

B.(D.C.) , [7] a 19 year old female who was severely intoxicated struck her grandfather in the face with an axe. She pled guilty to assault with a weapon. She was sentenced to 1 year open custody an 1 year probation. Her sentence appeal was dismissed. [ 31 ] In R. v. M.(J.I.) , [8] a 17 year old with an alcohol problem, and an extensive criminal record, attacked another person who had passed out at a party. The victim suffered a broken arm and a fractured skull. There was no motive for the attack. He was sentenced to 18 months secure custody.

The Saskatchewan Court of Appeal upheld the sentence. [ 32 ] And finally, in R. v. M.A.H . , [9] the Saskatchewan Court of Appeal imposed a sentence of 12 months closed custody for robbery. In M.A.H. the accused planned and participated in an armed robbery of a pizza delivery person. He had a lengthy criminal record, and the offence occurred shortly after his release from an open custody facility. He had addiction issues and was considered a high risk to re-offend.

Even though the Court of Appeal held that deterrence should not be a consideration in youth sentencing, it did state that the principals of the YCJA : [10] ...dictated a long term custodial sentence in this case, to accomplish the task of bringing the seriousness of the offence to the respondent's attention, and provide meaningful consequences to reinforce societal values without negatively affecting the respondent's likelihood of rehabilitation. In the last regard, it is apparent that meaningful progress in counseling and education can only be achieved for this young person in a custodial setting. VIII.

CONCLUSION AND SENTENCE [ 33 ] In this case the Crown is seeking a custodial sentence of 2 years to be followed by 12 months probation together with a DNA order and the mandatory firearm prohibition. [ 34 ] Defence is asking that a sentence of 1 year open custody, followed by a 12 month probation order be imposed. [ 35 ] The sentence I impose takes into account the extended time the accused spent on remand. By my calculation it amounts to 70 days or 10 weeks.

This, in effect, amounts to 140 days or 20 weeks as young offenders are entitled to double credit for time spent on remand. [11] The amendment to s. 719(3) of the Criminal Code , which suggests that offenders should not receive 2:1 credit for time spent on remand does not apply to the YCJA . [ 36 ] Accordingly, he is given credit for 20 weeks, or some 4 ½ months of actual, or closed custody. Having regard to this on Information # 38997568 he is sentenced to an additional 12 months custody and 6 months supervision.

The first 6 months of custody to be secure and the remaining 6 months will be open. [ 37 ] On the remaining four charges under Informations Y348442; 31572484; and 31572542, the sentence is 4 months concurrent. [ 38 ] Further, having considered the criteria in s. 487.051(3) of the Criminal Code , I order the accused to provide samples for the purpose of DNA analysis. [ 39 ] Finally, there will be a mandatory firearms prohibition pursuant to s. 109(1) (

a) of the Criminal Code and s. 51 of the YCJA . The prohibition is in effect for 2 years from today and will prohibit C.C.B. from possessing any firearm, cross-bow, prohibited weapon, restricted weapon, prohibited device, ammunition, prohibited ammunition or explosive substance. [ 40 ] Dated at the City of Prince Albert, in the Province of Saskatchewan, this 23 rd day of December, A.D. 2010. __________________________________ M. M. Baniak, J

[1] R. v. C.(J.) , 2010 SKPC 113 . [2] R. v. M.W.G. , 2005 SKPC 5 . [3] R. v. S.T. , 2010 SKPC 12 . [4] R. v. S.(S.M.) , 1991 SKCA (SentDig) 71 . [5] R. v. M.(T.) , 2009 SKCA (SentDig) 30 . [6] R. v. (W.J.) , 2004 SKCA (SentDig) 17 . [7] R. v. B.(D.C.) , 2000 SKCA (SentDig) 48 . [8] R. v. M.(J.I.) , 1997 SKCA (SentDig) 18 . [9] R. v. M.A.H . , 2006 SKCA 114 , [2006] S.J. No. 668 . [10] R. v. M.A.H . , supra , para. 11 . [11] R. v. J. (T.F.) , 2010 SKPC 88 .