Her Majesty the Queen - v. -, 2016 SKPC 21

IN THE PROVINCIAL COURT OF SASKATCHEWAN YOUTH JUSTICE COURT Citation: 2016 SKPC 021 Date: February 17, 2016 Information: 40273540 Location: Regina _____________________________________________________________________________ Between: Her Majesty the Queen - and - D.J.H.S. Appearing: Ms. N.E. Quaroni For the Crown Ms. Jill M.

Drennan For the Accused 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 ON SENTENCING B.D.

HENNING, J. [ 1 ] D.J.H.S. was charged originally with four others, and in particular, with C.S., with the offence of endangering the life of Ryan Graham, thereby committing aggravated assault contrary to section 268(1) of the Criminal Code and the Youth Criminal Justice Act (hereafter YCJA ) on November 21, 2014. He was also charged with the related charge of failing to comply with a Youth Court sentence by failing to keep the peace and be of good behavior, contrary to

section 137 of the YCJA . C.S.

pleaded guilty to this offence before myself some weeks before a guilty plea was entered by the present accused young offender. C.S. was sentenced to twenty-four months closed custody (split in the normal way 2/3 – 1/3 for actual custody and supervision), less credit for remand. Although the participation in the offence was not significantly different for the two offenders, the personal circumstances, record of offending, and conduct prior to entering pleas has been markedly different. The issue for this sentencing is to what extent the differences between the two offenders should be reflected in sentencing.

The Crown has taken the position that the appropriate sentence for this offender is eighteen months of closed custody, which reflects his lesser record of prior offending. [ 2 ] The Crown filed a booklet of information pertaining to the case that included pictures of the weapon used, a large machete knife, pictures and medical reports of the victim which depict and explain the most serious category of injury with permanent effects, a Victim Impact Statement, and the record of the offender.

That record is as follows: November 6, 2014 - Failing to comply with undertaking; Possession of property obtained by crime, over $5,000; and Failure to comply with undertaking, which resulted in eight months of probation. April 30, 2014 - Assault, which resulted in a conditional discharge of 9 months probation. [ 3 ] The victim had come upon the Accused on the street with some others as he was approaching his truck. Members of this group were drinking and wearing Native Syndicate colours. The incident began as a fight by consent.

The Accused may have thought the persons had or were interfering with his vehicle, and he challenged them and quickly produced some ‘knuckle dusters’ (sometimes referred to by other names, including ‘brass knuckles’, ‘knuckle busters’, etc.), a form of weapon that would be to his advantage in a fist fight. He was met with a severe attack by the Accused and C.S. with machetes. He was quickly brought to the ground where he was kicked, beaten, and hacked at by the machetes, sustaining serious, life-threatening injuries. Both male offenders struck him multiple times with the machete.

Two female accomplices to the offences attempted to steal his truck, but experienced difficulties with its manual transmission. The victim ejected them and drove himself to the hospital. The prime offenders had been heavily intoxicated. [ 4 ] Mr. Graham experienced severe cuts through his arm muscle to the bone where the knives almost gouged through the bone necessitating extensive surgical repairs with multiple screws to stabilize the bone fractures, complex suture repairs to tissue, and reduction of wounds.

He was hospitalized for a significant time and away from work for an extended period of time, which had not ended at the time of making his Victim Impact Statement. He has given an extensive impact statement of the economic effect on his family, psychological trauma, and effects of the injury that were still significant at its writing, and will likely have permanent effects due to the extensive amount of reconstruction of his arm.

He also spoke of the personal impact that included the loss of his cell phone with all of his family pictures in it, the effect on care for his daughter, and the reaction of other family members to his altered appearance. [ 5 ] The Crown has filed an extensive submission citing authorities for a sentence in the range sought for very serious instances of violence where there was little or no record of prior offending. In the Crown brief, reference is made to sections 38 and 39 of the YCJA , which lists a significant number of considerations to be applied in sentencing.

Section 38 has a long and complex listing of factors for consideration, and owing to the range of considerations, it is apparent that a wide range of considerations exist which produce many possibilities for sentencing options. While accountability, consistency with other sentences for similar offences and circumstances, and meaningful consequences are all detailed, they must be balanced with all other possible sanctions and must be the least restrictive sentence that is capable of achieving the objects set out, having particular regard to the circumstances of Aboriginal young persons.

The offender is Aboriginal, and has experienced family instability. A particular consideration for young offenders is what is ‘most likely to rehabilitate the young person’. [ 6 ] Section 38(3) sets out a number of considerations to take into account: a. The alternatives to custody that are available; b. The likelihood the young person will comply with a non-custodial sentence, taking into account his compliance with previous non- custodial sentences; and c. The alternatives to custody that have been used in respect of young persons for similar offences committed in similar circumstances.

[7] The offender has spent only nine days in actual custody from the time of the offence until sentencing. The offender was in custody until released after the Court obtained a Judicial Interim Release Report that was positive. Hehas kept the extensive conditions for the significant period of time of over one year, and it has included the electronic monitoringprogram and a requirement of school attendance. Although the guilty plea has taken place more than a year after the offence, theoffender at the time of his arrest made a full statement admitting the charges.

He has recognized his offence without minimization andappears remorseful. [8] A Pre-Sentence Report was obtained that was presented on November 9, 2015. This is a detailed and extensive report that refers to a prior assault incident that occurred at Martin Collegiate for which he was discharged. Thereport identifies many positive aspects of the offender’s current situation. These include: a. Full-time attendance at Scott Collegiate where he is performing as an average student. The school identifies major positive changesin maturity, focus and demeanor; b.

Involvement in pro-social activities, including boxing, drawing and beading, and improved family relations and involvement; c. Summer employment working 12-hour shifts which were ended when they began to affect school attendance; d. Dissociation from gang members and gang activity; e. Continuing stable relationship with his girlfriend with whom he has two children, including a newly-born child. They are takingparenting classes and other counselling which will continue together and separately; f. Involvement in addictions counselling; g.

Compliance with many conditions of release under electronic monitoring, which also included abstention from alcohol and non-medical drugs. [9] The Crown has referenced a number of cases where closed custody has been applied for incidents of extreme violence for an offender with no prior record of offences, including some cases from other jurisdictions whereimprovements in lifestyle had been made.

The Crown argues that in addition to these cases, the most relevant case to the present one isthe case of his co-offender, C.S. [10] The defence has also filed written Sentencing Submissions, and has argued for a sentence that would be in the interest of the offender to permit his continued development and rehabilitation. The defence strongly argues that acustodial sentence would be contrary to the interests of this offender, and consequently, contrary to the objects and options contained inthe YCJA.

The defence argued that a custodial sentence would result in actual harm by nullifying progress that has been made to date byplacing him in an environment with negative influences and cutting him off from positive supports and activities that support hisrehabilitation and development.

This progress has been examined and confirmed, and is more than merely a potential for improvements.The defence referred to two cases where non-custodial sentences were imposed in cases of extreme assaults with permanentconsequences to the victim: R v J.C., 2010 SKPC 113 and R v D.M.F., 2009 ABPC 85. [11] Cases cited suggest that sentencing in YCJA matters includes a very wide range of results, which is not surprising given the wide range of objects and considerations set out in the Act. The interests of a young offenderare to be balanced against public interests in all cases.

Accountability, deterrence, and public protection are all factors. They are balancedagainst others that I have listed above which focus on the offender. [12] I have had the advantage in this case of dealing with the co-offender whose case is relied upon by the Crown as a major consideration in achieving consistency and public protection. There were, however, significantdifferences between these two offenders, though with respect to participation in the actual offence. The other offender had a more seriousrecord of offending, that included aggravated assault and more breaches of orders.

While the present charge was pending against him, hewas also charged with a weapons offence, that included the possession of a machete similar to this present case. He had accomplishedlittle or nothing positive while on release, and his release pending disposition of charges was revoked. While in custody he was involvedin other potentially criminal high risk behavior that reflected upon his attitude and openness to community counselling. The Crown briefin that case listed the following concerning and aggravating personal issues (from paragraph 33 of Ms.

Quaroni’s Brief of Law), all ofwhich are in contrast to the offender in the present case. The following behavior and factors applied to C.S.:

a. Criminal History i. While on remand it was discovered that C.S. was one of four main instigators who planned toassault Paul Dojack staff to obtain the unit keys and escape. ii. In addition, gang writing was found among his personal items. b. Education/Employment and Leisure/Recreation i. His last completed grade was grade 9. ii. He frequently does not attend school and is not employed. As per court ordered conditions, itappears C.S. would not attend school. When left on his own his time is marked by inactivity and boredom. c. Family Circumstances and Parenting i.

While in the community C.S. lives with his uncle Alfred Sacasecawin. While Alfred attemptsto influence C.S. in positive ways his attempts are passive and ineffectual. d. Companions i. The majority of C.S’s friends have been or are involved in the Criminal Justice System. ii. He admits membership in the Native Syndicate street gang. e. Pro-criminal Attitude/Orientation i. C.S. indicated he feels a rush sometimes when he commits a crime. ii.

While C.S. should receive the benefit of accepting responsibility and demonstrating remorse,he continues to place some blame on the victim for starting the fight and blames his actions on alcohol. f. Substance Abuse i. C.S. struggles with alcohol and drugs. He dedicates nearly all his funds to the purchase ofalcohol and uses marihuana whenever he can get it. [13] In determining a sentence of twenty-four months of closed custody in the C.S. case, I reached the conclusion that the objects of the YCJA supported a custodial sentence and that no other sentence would address community safety.

Further, I was of the opinion that the offender needed the structure of closed custody for his own rehabilitation given his identifiedbackground and personal conduct both in and out of custody pending disposition of the charges. I believed that no other sentencingoption available would meet either public needs or the personal needs of the individual. [14] The present case involves the same serious circumstances and actions by the offender against the victim. However, this offender has made very large, fully documented progress in personal development.

His attitudethroughout has been different from the co-offender, having made a complete admission to the police of his involvement at the outset. This has been followed through with many specific actions that are detailed above. The public is not in my opinion, at risk of furtherviolence from this offender if he continues under programming and supervision. I am also of the opinion that for this offender, a sentenceof closed custody would be counter-productive and put at risk the positive changes and connections the offender has made in the pastyear.

Such a sentence would achieve consistency in one sense, but that consistency would be at a high risk to the offender’s well-beingand progress, and would provide no additional protection to the public. As such it is not justified, and the YCJA, in my opinion,recognizes differing considerations and consequent results.

Prior cases have made the observation that the sentencing of similaroffenders differently for a similar offence, does not achieve justice, but nor does the equal sentencing of dissimilar offenders for similaroffences, R v Culliton (ON CA). [15] In R v Baldhead, (SKCA), (SK CA), 1966 CarswellSask 10, [1966] 4 CCC 183, 48 CR 228, 55

WWR 757 the court reviewed many cases dealing with disparity of sentencing and cited the following case with approval which is nowof considerable age: In Rex v. Switlishoff, (BC CA), [1950] 1 W.W.R. 913, 9 C.R. 428, 97 C.C.C. 132, at 136 (B.C. C.A.), O’Halloran, J.A.expressed similar views, with some reservations, when he said at p. 916: Were the sentences adequate? That depends upon all the surrounding circumstances. There is no such thing as a uniform sentence for aparticular crime. No doubt in somewhat similar circumstances it is desirable to avoid marked disparity in sentences.

But the individualhimself and his surrounding conditions cannot be ignored. For example: Is he an old offender? Is he a first offender? Has he beenresponsive to leniency? These are a few of the things that in the ordinary cases before this Court create distinctions between individualsentences. Manslaughter is an apt illustration: The sentence may be a few months only, or it may be life imprisonment, depending on thecharacter of the person, the circumstances of the crime and other conditions which combine to decide the leniency or severity of thepunishment to be imposed. In Rex v.

Stonehouse and Pasquale, (BC CA), [1928] 1 W.W.R. 161, at 163, 39 B.C.R.279, at 282, 49 C.C.C. 122, at 123-4, this Court said no rule can be laid down defining a uniform punishment for crimes of a particularsort, and see Rex v. Mackie, (BC CA), [1944] 2 W.W.R. 84, 60 B.C.R. 293, 81 C.C.C. 338. [16] In R v Laliberte, 2000 SKCA 27 , dealing with the complex new principles applicable to conditional sentencing, the Court reviewed Divers sentencing principles, and focused on the question of communitysentences where prior sentencing practices might have imposed actual custody.

This case also considered the situation of Aboriginaloffenders and the principles of R v Gladue, [1999] 1 SCR 688, (SCC), which has been much considered since. Thecase also discussed the question of disparity of sentences. Vancise, JA at paragraph 71 considered how individual sentencing is, and thatindividualism pertains to the offender as well as every other circumstance of the offence. He stated: [71]

Section 718.2(

b) of the Code provides: a sentence should be similar to sentences imposed on similar offenders for similar offencescommitted in similar circumstances. This implies there must not be an unjustifiable disparity in sentences between sentences imposed forsimilar offences and similar offenders. The operative word is “similar”. In the absence of a minimum mandatory sentence there is nosuch thing as a uniform sentence for a particular crime. The determination of a just and appropriate sentence is a highly individualizedmatter.

It is a delicate task which involves balancing the goals of society against the moral blameworthiness of the offender in thecircumstances of the offence. In M.(C.A.),Chief Justice Lamer stated that the appropriate mix of accepted sentencing goals depends onthe needs and current conditions in the community where the crime occurred. [17] The above case considered the case of R v Morrissette, (SK CA), where the Court of Appeal imposed widely disparate sentences in a case of three persons charged with rape, who acted jointly.

As a result oftheir background, circumstances and participation, sentences varied from one to five years. [18] I conclude that the objects and options contained in the YCJA for dealing with young persons includes a broad range of considerations that may vary in particular cases, with resulting wide ranges in sentencing. The interests of theoffender must be considered as paramount except where the young person represents a real and significant threat in the community, orhas been unresponsive to measures short of custody.

I do not conclude that the prerequisites to a custodial sentence are met here, exceptin the technical sense that such an option in sentencing is available. Although consistency with the co-offender is a valid consideration,in the circumstances of this particular case, I do not conclude it is the governing object or principle to be applied.

I conclude that acustodial sentence would be harmful to the rehabilitation and development of the young person, notwithstanding that the offence is onewhich had grievous effect on the victim. [19] Accordingly, I will impose the least restrictive sentence that will achieve the rehabilitation of the offender. The YCJA at section 42 (5) allows making a deferred custody and supervision order where the offence is not “an offenceother than one in the commission of which a young person causes or attempts to cause serious bodily harm”.

Accordingly, the leastrestrictive sentence is one of probation which may be for a period of up to two years, which is longer than allowed for deferred custodyand supervision. Conditions of probation may be crafted to address accountability, rehabilitation and protection to the public as those concerns exist in this case. Accordingly, that is the sentencing disposition that the court would make, subject to further argument concerning conditions and other additional orders thatmay be required by law. Dated at the City of Regina, this 17th day of February, 2016. ______________________

B.D. Henning, J.