His Majesty the King - v. -, 2023 SKPC 30

IN THE PROVINCIAL COURT OF SASKATCHEWAN Citation: 2023 SKPC 30 Date: May 16, 2023 Information: 90465590 Location: Big Island Lake Between: His Majesty the King - and - Danica Ochuschayoo Appearing: William Louison For the Crown Laura Mischuk For the Accused SENTENCING DECISION M. SEGU, J Introduction [ 1 ] The accused, Danica Ochuschayoo, has entered a guilty plea to a single count of aggravated assault. On April 11, 2022 Crown and defence embarked on a contested sentencing and the Court was tasked with determining an appropriate sentence. The Offence

[ 2 ] On May 17, 2022 the victim, Reva Flunkie came home to her residence at Big Island Lake Cree Territory to find the accused and others in her home drinking and essentially having a party. She asked them to leave, and there was an initial confrontation. Ms. Flunkie was hit in the back, but could not say by whom. At that point, she elected to leave her own residence and go to a nearby neighbour’s residence, that of Ashley Sandfly. While walking to the neighbours’, Ms. Flunkie was then viciously attacked by the accused, who had pursued her outside, for reasons unknown. [ 3 ] The neighbour, Ms.

Sandfly, observed the accused hitting the victim with what appeared to be a crowbar, over 20 times. She was struck in the body as well as the head. Up to 11 other people were also present, watching the assault, and took no steps to either stop the assault or to assist Ms. Flunkie. Ms. Sandfly called the police who, fortunately, responded quickly. I say fortunately, as Ms. Flunkie was laying on her side, gasping for air and screaming in obvious pain. She had cuts on her head and body and eventually lost consciousness.

At one point, she stopped breathing, and the officer at the scene was required to perform CPR while EMS was enroute. Ms. Flunkie’s situation was so dire that the decision was made to transport her from the attack scene at Big Island to Highway 155 to meet with EMS. She was eventually taken to Bonnyville and then Edmonton for emergency care, and spent four days in hospital before prematurely checking herself out. Despite the severity of the situation, the accused (and others) did not lift a finger to provide any measure of assistance to her after the vicious and unprovoked beating. Rather, Ms.

Flunkie was left lying in the dirt to suffer in agony. [ 4 ] Photos were filed as Exhibit P-1, and the Crown provided a detailed and uncontested account of Ms. Flunkie’s injuries including: significant damage to her hands and face; six scalp lacerations that required staples to close; two skull fractures near the parietal bone; a significantly torn left ear lobe that required plastic surgery to repair; a cut on her left cheek; and two separate fractures in her left hand. The photos also reveal significant swelling to the right hand. Although no victim impact statement was completed by Ms.

Flunkie, it is not difficult to infer that there would be a lengthy and difficult period of healing to recover from these injuries. Additionally, these injuries, particularly the two skull fractures, have the potential to have a lifelong impact. It is also notable that the victim is a 28 year old Indigenous female, part of a vulnerable population. [ 5 ] For her part, the accused is also a young Indigenous female, who prior to the offence had maintained sobriety for a period of nine months. She was drinking during the offence itself, but has not had a drink since.

Position of Parties [ 6 ] The Crown, citing the number of aggravating factors, seeks a penitentiary sentence of three years, as well as ancillary orders, relying on the following cases to establish a range of two to four years: • R v Ratt , 2021 SKCA 7 [ Ratt ] • R v Noltcho , 2021 SKCA 113 • R v Cullen , 2014 SKQB 371 , 461 Sask R 267 [ Cullen ] [ 7 ] The defence argues for a suspended sentence of three years, citing a number of factors, including the lack of any previous criminal record, Gladue [1] factors, and her excellent track record while on release conditions since June 6, 2022.

The defence filed the following cases in support of their position: • R v Nicholls , 2013 BCSC 1145 [ Nicholls ] • R v Grayer , 2018 ONCJ 642 [ Grayer ] Analysis [ 8 ] Without reciting sections 718 and 718.1

chapter and verse, the Court has considered the principles and purpose of sentencing under those sections, including deterrence, denunciation, rehabilitation, the promotion of a sense of responsibility in the offender, and an acknowledgement of the harm done to the victim, as well as proportionality. [ 9 ]

Section 718.2 has also been considered, including the aggravating and mitigating factors which I will discuss further in this decision, the fact the offence clearly had a significant impact on the victim, parity, and sanctions other than imprisonment that are reasonable in the circumstances and consistent with the harm done to the victim, with particular attention to Ms. Ochuschayoo’s

circumstances as an Indigenous offender. [ 10 ] Finally, I have considered s. 718.04, which although not specifically referenced by Crown or defence, is clearly applicable, as Ms. Flunkie is an Indigenous female. As such, the Court is mandated, by law, to give primary consideration to the objectives of denunciation and deterrence to the conduct that forms the basis of this offence. [ 11 ] The Court also has the benefit of a pre-sentence report (PSR) providing further detailed information regarding the accused.

Aggravating Factors [ 12 ] In reviewing the circumstances of this case, I find the following to all be aggravating factors that the Court must consider: • both the extent and the severity of the injuries inflicted by the accused on Ms. Flunkie, which I have already recounted and will not repeat; • the fact that the victim was pursued out of her own residence and was subjected to an unprovoked assault.

The victim was leaving her own residence to extricate herself from a verbal confrontation, and the accused, rather than leave things alone, opted to pursue her, with a weapon, and severely beat her; • the prolonged nature of the assault: this was not a quick one or two strikes, and I acknowledge that it takes time to hit another person over 20 times; • the location of the injuries is, in my opinion, also aggravating, in the sense that multiple blows were aimed directly at the victim’s head and face; • the immediate and significant impact on the victim, particularly the loss of consciousness and the cessation of breathing that required immediate CPR by the officer; • the fact the accused provided absolutely no assistance, but rather left her victim lying in the dirt to suffer.

Mitigating Factors [ 13 ] In addition to the several aggravating factors mentioned, there are multiple mitigating factors that must be reflected in any sentence imposed. Specifically: • the young age of the accused, as she is only just 19 years of age; • the complete lack of a criminal record; • the impact of the entering of a guilty plea as her acceptance of responsibility, as well as her willingness to turn herself in to police; • the relevant Gladue factors set out in the PSR. Additionally, I have considered her good conduct while bound by restrictive bail conditions for ten months.

Personal Circumstances of the Accused [ 14 ] The PSR sets out the details of Ms. Ochuschayoo’s upbringing. Neither of her parents attended residential school, although her maternal grandmother attended day school at Big Island Lake, and there was alcoholism in Ms. Ochuschayoo’s mother’s home growing up. [ 15 ] She grew up with alcohol use in her family, and her parents would drop her off with other relatives when they were drinking. Ms. Ochuschayoo, as a result would often go stay with her maternal grandparents in Bonnyville, Alberta.

She herself began drinking at age 12, and was consuming a significant amount by age 16. It seems there was also alcohol use in the grandparents’ home as well, and

one incident in particular is identified where Ms. Ochuschayoo, at age 13, was required to drive her grandmother. When she eventually refused to drive any longer, the grandmother, who had been drinking, was involved in a car accident and died. Ms. Ochuschayoo continues to blame herself for that accident, although clearly it is not her fault. [ 16 ] Ms. Ochuschayoo also recalls the impact of poverty growing up, and not always having necessities, including food. She has suffered from depression and anxiety. [ 17 ] There is some basis upon which to draw a connection between Ms.

Ochuschayoo’s upbringing and her later difficulties with alcohol. That being said, the impact of those Gladue factors on the offence at hand is somewhat muted, given that well before the offence, Ms. Ochuschayoo was able to maintain a sober lifestyle for a period of nine months, and has not had a drink since the offence. She also enjoys the benefit of a stable and supportive relationship with Chad Strongarm, and enjoys strong parental support. This is not, for example, a case where the Gladue factors specifically drive recurring criminal behaviour. [ 18 ] Additionally, Ms.

Ochuschayoo has herself on two separate occasions been the victim of sexual violence, perpetrated by extended family members. It appears her unresolved anger towards her assailants is still impacting her today. However, it is also worth keeping in mind that Ms. Ochuschayoo chose, as her victim, another Indigenous female, who is a member of a vulnerable population routinely targeted for violence. [ 19 ] While she does not have a criminal record, Ms.

Ochuschayoo by her own admission was a member of the Westside Outlaw criminal organization for a period of one year, between 2019 and 2020. [ 20 ] The PSR is also clear about Ms. Ochuschayoo’s remorse, as set out at page 4, in that she takes full responsibility for her actions, and is sickened by the injuries she caused to the victim. [ 21 ] The accused is assessed as a medium risk to reoffend.

Relevant Sentencing Principles [ 22 ] In addition to the above, I have distilled the following helpful principles from our Court of Appeal in Ratt : • public protection is a key objective to be pursued when sentencing for offences involving interpersonal violence (para 56); • placing primary emphasis on the objective of rehabilitation where the circumstances of the case and the offender’s history provide no reasonable basis for doing so can be an unreasonable exercise of discretion (in this case, there is no offender history per se , but s. 718.04 mandates a primary focus on deterrence and denunciation) (para 60); • while Gladue factors are relevant under s. 718.2(e), they do not automatically trump or displace other sentencing considerations or objectives (para 63-65); • the general sentencing range for aggravated assault in this province is a term of imprisonment of between two and four years “even assuming an offender of previous good character with no criminal record”, citing R v Sayazie , 2010 SKCA 14 , 346 Sask R 147 [ Sayazie ].

Notably, in Sayazie , the offender had no previous criminal record, and his sentence on appeal was increased to 3.5 years. Determining a Fit Sentence [ 23 ] Against this factual background, these personal circumstances, and the relevant sentencing principles, I turn now to a consideration of what constitutes an appropriate sentence for this offender. Aggravated assault is, by definition, the most serious form of personal violence short of causing the death of another human being.

It is an indictable offence by law, and carries a maximum sentence of 14 years in prison. [ 24 ] In the cases filed by defence, I note the circumstances are quite factually distinct. For example, in the Grayer case, the victim was in the act of pulling out a knife when the accused tackled him, and then punched and kicked him several times for a brief period of time (10-15 seconds). The injuries consisted of cuts and bruises, and a subdural hematoma, not multiple skull fractures, hand fractures,

and a torn ear. I also note the accused, prior to sentencing, successfully complete an eight week anger management program of his ownvolition.

In the Nicholls case, the injuries were significantly less severe: two small stab puncture wounds, sutured at the hospital, clearlynot life threatening, and not requiring an extended hospital stay such as in this case. [25] The case perhaps closest factually to the present circumstances is the Cullen decision filed by the Crown: a prolonged,unprovoked and vicious attack, resulting in an intracranial bleed, a fractured clavicle, lumbar fractures, a fractured nose, lacerations,abrasions and broken teeth. The accused in that case had a minimal and unrelated record, and was 37 years old.

A sentence of four yearswas found to be appropriate. [26] The first issue is whether a suspended sentence is an appropriate disposition in this case. I conclude that it is not. Thesuspended sentence with the conditions suggested by counsel focuses almost exclusively on rehabilitative measures designed to addressalcohol consumption (admittedly a factor in this offence). The only condition suggested that could be construed as speaking todeterrence and denunciation is the proposed curfew clause. [27] In the Court’s opinion, a suspended sentence fails to adequately address proportionality.

Here, there is a high degree of moralblameworthiness. This was an unnecessary pursuit of, and unprovoked attack on, the victim. It was a sustained and vicious attack with aweapon, resulting in serious head and body injuries. [28] Additionally, s. 718.04 requires the Court to emphasize denunciation and deterrence. This does not mean rehabilitation has norole in sentencing, but it is, by necessity, of secondary importance. [29] Nor would a suspended sentence promote a sense of responsibility in Ms. Ochuschayoo, and drive home the brutal impact ofher actions on Ms.

Flunkie. [30] Having rejected a suspended sentence, I turn next to the appropriate length of a custodial sentence, keeping in mind the statedrange of two to four years. I find an appropriate sentence to be one of three years (or 1095 days) prior to any credit for pre-trial detentionor Gladue factors. The Crown argues that its position has already taken into account mitigating factors and Gladue principles.

However, given the review of the case law filed, as well as additional cases including Sayazie and R v Dufault (1995), (SK CA), 128 Sask R 235 (Sask CA), I find that a further deduction is warranted given that in many of the cases relied on by the Crown,the accused had a significant and related record for prior violence. [31] Ms. Ochuschayoo has credit for 22 days pre-trial custody, which at enhanced credit of 1.5 equals 33 days. [32] Balancing the Gladue factors previously mentioned, Ms.

Ochuschayoo’s ongoing mental health struggles, and the successfulcompliance with bail conditions over a period of 10 months, I find a further deduction of 180 days warranted. [33] The net result is a sentence of 882 days. As an aside, there was some suggestion that a conditional sentence was unavailableas a sentencing option. While previously true, this of course changed with the passage of Bill C-5 on November 17, 2022. However,given the Court’s view of an appropriate sentence length, the pathway to a conditional sentence is not opened.

Even if it were, I am notof the view that it would be appropriate in terms of proportionality to the offence. [34] The Crown has sought the mandatory ancillary orders, including DNA and a s. 109 weapons prohibition. Given that this is aprimary designated offence, an order will be made pursuant to s. 487.051, and Ms. Ochuschayoo is to provide a sample of her DNA forinclusion in the national databank within the next 30 days. Additionally there will be an order made under s. 109 for a period of 10 yearscommencing after Ms. Ochuschayoo’s release from imprisonment. [35] The victim fine surcharge is waived.

_________________________ M. Segu, J