R. v. D.R.S. Date:, 2016 BCPC 280

Citation: R. v. D.R.S. Date: 20160224 2016 BCPC 280 File No: 3768-2-C, 8815-1-A, 8816-1-A, Registry: Prince George Kamloops IN THE PROVINCIAL COURT OF BRITISH COLUMBIA REGINA v. D.R.S. REASONS FOR SENTENCE OF THE HONOURABLE JUDGE E.L. BAYLIFF Counsel for the Crown: S. Mengering Counsel for the Defendant: J. Jensen Place of Hearing: Prince George , B.C.

Date of Hearing: February 24, 2016 Date of Judgment: February 24, 2016 [ 1 ] D.R.S. is 17 years old. He will turn 18 in a few days. D.R.S. has entered a guilty plea to a charge of Aggravated Assault on another youth, H.W. contrary to s. 268(2) of the Criminal Code . [ 2 ] The assault took place on January 7 th , 2013. At the time, D.R.S. was 14 years and 10 months old. He had no criminal record at the time. His criminal record now, 3 years later, is a short one, consisting of two convictions for Breach of Undertaking (curfew).

Today, two other Breach convictions must be added to that list (curfew and reporting). [ 3 ] I sentenced D.R.S. on Wednesday, February 24 th , 2016 to a global sentence of 180 days of Custody and Supervision, less time served of 19 days = 106 days of Custody, plus 55 days of Supervision, plus 12 months of Probation. The provisions of the sentences are set out in detail in Appendix A. I said that written reasons would follow. These are my written reasons.

Facts [ 4 ] On or about January 7 th , 2013 two young women, M.J. and L.P., texted some of their friends to say that they believed they had been sexually interfered with while they were asleep in Ms. J’s apartment on Juniper Street in Prince George. Ms. J. and L.P. decided that the person who had “raped” them was another youth of their acquaintance, D.P. D.P. was invited over to Ms. J’s apartment on a pretext and assaulted and confined by the girls and their friends. From things D.P. said, the group decided that the real culprit must be H.W., a 17 year old youth, who was a cousin to D.P.

Contact was made with H.W. and he was invited over to the apartment to “party.” [ 5 ] The accused, D.R.S., was not involved in any aspect of the incident involving D.P. He became involved sometime later in the day when he received a text from Ms. J. advising that she and the others had tracked down the guy that “raped her” and had invited him over to the apartment. D.R.S. texted back saying he wanted in on it and not to do anything until he got there. [ 6 ] D.R.S. got to Ms.

J’s apartment shortly afterwards and shortly after that the group, now consisting of about 6 or 7 young people, plus D.P., who they were holding in confinement, went up to the empty “penthouse” suite on the roof of the building to await H.W.’s arrival. [ 7 ] As they were waiting for H.W., D.P. overhead the young people discussing what would be an appropriate “punishment” to give H.W. for having “raped” the girls. He heard the group talking about “shoving something up [H.W.’s] ass” and saying “That’s what he gets.

That’s what he deserves.” D.R.S. was present for this discussion though his exact involvement in it is unknown since D.P. was confined in another room and could not identify the speakers. [ 8 ] Upon his arrival, H.W. was punched in the face by one of the other male youth which knocked him into the wall. Then everybody attacked him. When H.W. was on the floor, two of the males pulled his pants down and the accused, D.R.S., sodomized him with the handle of a mop.

D.P. testified at a preliminary hearing held in a related, adult proceeding, that he heard one of the attackers shout “grab the broom” and “hold him down” then he heard H.W. making the “awfullest sound you could ever heard from a friend.” [ 9 ] H.W. became unconscious and his body was dragged to the kitchen where the assailants poured cold water on his face, slapped his cheeks and told him to wake up.

One of the other males grabbed H.W.’s face, as he lay on the floor, and yelled “look in my face and know who’s girlfriend you tried to rape.” One of the girls, L.P., hit H.W. on the head with a frying pan which she had heated up on the stove. Ms. J. kicked H.W. in the head a couple of times before one of the males told her to stop because H.W. was unconscious. [ 10 ] The latter part of the incident was recorded on a cell phone video. This was after H.W. had been sodomized and was unconscious.

The accused, D.R.S., and others, can be heard yelling various things at H.W. who is seen lying unconscious on the floor. [ 11 ] Some of the assailants seemed to realize that H.W. had been very seriously injured. There is a comment that he is “startin’ to seizure” and that he needs medical help. The group carried H.W.’s body downstairs, out the back door and dumped it on a snowbank next to the garbage dumpster. [ 12 ] D.R.S. assisted with moving H.W.’s body and then used a telephone belonging to the manager’s girlfriend to call 911. He reported that he had found someone in the back alley who was unresponsive.

He told the 911 operator that he wished to remain anonymous. [ 13 ] Two of the young males remained with H.W. until para-medics arrived. They lied, saying they had found H.W. in that location. The others, including D.R.S., went to the nearby 7-11, then returned to Ms. J’s apartment where they smoked some marijuana. [ 14 ] Although D.R.S. showed concern for H.W. by calling 911 in the immediate aftermath of the assault, by the next day he was texting Ms. J. with apparent unconcern. He texted: “Hahaha, goodmorning sunshine.

Whatscraaackin other than kids domes alllll day.” [ 15 ] The police investigation began and D.R.S. turned himself in 5 days later, on January 12 th , 2013. [ 16 ] A subsequent investigation into the alleged sexual assault on the girls resulted in Ms. J. saying she was uncertain whether anything had actually happened and Ms. L.P. denying that anything had happened. As a result, no charges were ever recommended in that matter. Victim Impact [ 17 ] H.W. remained in hospital for 16 days. He sustained the following injuries:

a) frontal, subdural brain hemorrhages;

b) traumatic brain injury;

c) laceration on his left eyelid, which was sutured;

d) severe bruising to his upper face;

e) linear shaped bruise on his right hip measuring 10 cm across and 10 cm long; and

f) bleeding to the rectum. [ 18 ] In hospital, in the weeks following the assault, H.W. reported having no memory of it. The last memory he could relate was from New Year’s Day, 2013, seven days before the assault. It is unclear to me whether H.W. still has no memory of the event. I understood this to be Crown Counsel’s submission.

However, I note that in his October, 2015 victim impact letter H.W. talks of the memories “flooding back” as time has gone by. [ 19 ] H.W. was discharged on January 22 nd , 2013 with a recommendation that he receive follow-up medical treatment for his traumatic brain injury, physio-therapy, occupational therapy and counselling. [ 20 ] H.W. prepared two Victim Impact Statements which are attached to the Pre-Sentence Report prepared by Mr. Bartella. The first is dated December 17 th , 2014.

He writes that he feels a lot of fear and this makes it hard for him to take his wife or infant son out into the community - for a walk or to see a movie. He writes that he gets terrible nightmares and wakes up crying. He writes that “sometimes I feel so alone, like I’m the only person in the world. I can’t talk to [no] one, I get to[o] emotional.” [ 21 ] About a year later, in the fall of 2015, H.W. completed another Victim Impact statement for another of the prosecutions that has flowed from this incident. On this occasion he dictated his comments and they were typed out.

He says that before the events of January 7 th , 2013 he was “innocent to the evil in this world”. He speaks of the constant fear that made it hard for him to go out into the community for a long time after the assault. He speaks, as well, of good things in his life - such as the fact that he has become a father. He said that he was raised to be kind and thoughtful to others and assumed that others would have the same ethic but “I was so wrong”. However, he says that he is not bitter and he will not use what has happened to him as an excuse for becoming “a monster who treats others badly”.

He says he is grateful to be alive and that he and his family “love life…and still believe that there is good in the world, this is how I want my children to grow up.” He expresses the hope that eventually, with time, his bad memories and fears “will be just that, bad memories”. [ 22 ] I asked about follow up treatment received by H.W. for his physical and psychological injuries. Crown Counsel said that some options have been discussed with H.W. but that he is of a stoic disposition and, by and large, has not pursued any further treatment.

Positions of the Parties [ 23 ] Crown Counsel urges the court to impose a global penalty of 6 months or 180 days of custody and supervision plus 18 months of probation. [ 24 ] Defence Counsel urges the court to impose no new jail, citing a total of about 57 days of pre-sentence custody plus the more than 3 years D.R.S. has already had his freedom limited by restrictive bail conditions, and D.R.S.’ recent success at the [omitted for publishing] Program bail bed in Houston, B.C.

Defence Counsel agrees that a lengthy period of probation should be imposed on D.R.S., but urges the court to find that custody and supervision is not required. Analysis 1. Purpose and Principles of Sentencing [ 25 ]

Part IV of the Youth Criminal Justice Act deals with sentencing. Ss. 38, 39 and 42 are particularly relevant. Purpose (s. 38(1)) [ 26 ] The purpose of the sentences I impose on D.R.S. must be to hold him “accountable” through the imposition of “just sanctions” that have “meaningful consequences” for D.R.S. and that “promote his rehabilitation and reintegration into society”. [ 27 ] This was a very brutal assault. D.R.S. was involved in only one aspect of the assault, the sodomization of H.W. with a mop handle, but it was a particularly sadistic act. In my view a sentence of custody and supervision (s. 42(2)(n)) is the only “just sanction” for such

an act even though D.R.S. was very young at the time and was younger than any of the other assailants. [ 28 ] In determining that a period of custody and supervision is called for D.R.S., over and above pre-sentence custody, I bear in mind that each of the other youth sentenced to date have received at least 180 days of custody and supervision, usually in a combination of pre and post-sentence custody.

See Table at paragraph 14 of the Crown’s written submissions. [ 29 ] I hope that the relatively short period of custody and supervision I have decided to impose plus the structured probationary sentence of 1 year to follow, will be a “meaningful consequence” for D.R.S. I have no evidence to suggest that it will not be a meaningful consequence. However, I do admit to some concern that custody and supervision will be seen as an opportunity by D.R.S. to act with the grandiosity, bravado and resistance commented on by Dr. Hayes, the psychologist.

I acknowledge this risk given the example set for him by his parents (both his parents are currently in jail), the violence he was exposed to as a child, his tendency to be involved for several years now, with other criminalized youth, his involvement in marijuana use and trafficking, and the features of his personality commented on by Dr. Hayes.

[ 30 ] The final concern is that the sentence I impose “promote D.R.S.’s rehabilitation and reintegration into society”. This is principally addressed through the 12 month probation order I have imposed which follows the recommendations in the psychological assessment and the Pre-Sentence Report to set up a structured living arrangement for D.R.S. that will last long enough to allow him to establish new and more pro-social ways of living his life. I have decided to reduce the length of the probation order from the 18 months recommended, to 12 months.

I do so in recognition of the fact that D.R.S. has already lived for 3 years subject to restrictive bail conditions. While his compliance has been very far from perfect, I have not been told of any convictions or even any charges for new, substantive, offences. D.R.S. will be 19 in the spring of 2017. In my view, the court needs to back out of D.R.S.’s life fairly soon thereafter, so I will impose a Probation Order of just one year in length. In my view that is adequate to address D.R.S.’s rehabilitation and reintegration into society.

Principles (s. 38(2) & (3)) [ 31 ] I am satisfied that the sentence I have imposed on D.R.S. satisfies the principles set out in s. 38(2)(

a) and (b). It is less than what an adult would receive for this offence. It is similar to, or less than, the sentences imposed on the other youth involved in this incident, which is appropriate given that D.R.S. has been convicted only of count 2. [ 32 ] In my view, the sentence is “proportionate to the seriousness of the offence and the degree of responsibility of the young person for that offence.” (S. 38(2)(c)) The offence was a very serious one and this sentence serves to denounce such treatment of another human being and deter D.R.S. from resorting to violence in the future (s. 38(2)(f)).

D.R.S. was responsible for a particularly sadistic aspect of that assault, but I do bear in mind that H.W.’s most serious injuries (the blows to his head which resulted in the injury to his brain) were struck by others. As well, D.R.S. was the youngest of the group, being only 14 at the time, and he had no previous criminal history. I have concluded that some new jail (in addition to time served) is required to recognize the seriousness of the assault.

A lengthy term of probation with terms directed at providing structure, pro-social activities and expectations and some life skills is also part of a “proportionate” sentence in this case given D.R.S.’s young age at the time of the offence, the information I have been provided about him in the reports and the importance of rehabilitation and reintegration (see s. 38(2)(e)). [ 33 ] Section 38(3) directs the court to consider mitigating and aggravating factors.

The principle mitigating factor in the case of D.R.S. is that he entered a guilty plea before trial so that H.W. and D.P. were spared the experience of having to testify against him in court. I note that each of the other youth who have been sentenced for a

part in this incident have also entered guilty pleas so the sentences imposed on those youth all take into account this mitigating factor (see paragraph 14 of Crown’s submissions on sentence for sentence). [ 34 ] It is also a mitigating factor that D.R.S. called 911 for an ambulance for H.W. after the group had dumped his body on a snowbank by the dumpster. 2.

Gateways to Custody - s. 39 [ 35 ] Counsel agree that none of the statutory barriers to custody set out in s. 39 are present in this case. [ 36 ] The offence was a violent one: (39(1)(a)). [ 37 ] Before deciding that a period of new jail (in addition to time served) was required in this case I considered the alternative to custody raised at the sentencing hearing which was that the court be content with a “time served” custodial sentence plus a lengthy probation order of 18 months. In my view this was not a reasonable alternative bearing in mind the need to denounce and deter such a serious offence. 3.

Effect of Time on Bail [ 38 ] Citing R. v. S.L., 2009 BCCA 563 at para. 62 , Defence Counsel argued that the three years D.R.S. has spent on strict bail terms (including ‘6 pm curfew’ and ‘no go Prince George’) means that D.R.S. has already suffered a severe sanction and that the sentence he receives ought to be reduced to take this into account. [ 39 ] I agree that the impact of bail conditions on an accused person is a potential mitigating factor and something that must be “put into the mix” along with other mitigating and aggravating factors when imposing sentence. See R. v.

Irvine, 2008 MBCA 34 at para 27 . [ 40 ] The bail conditions under which D.R.S. has been living fall well short of “house arrest”, and as Crown Counsel says, are not that different than the structure that a good parent would impose on the activities of their child. [ 41 ] Despite this, I have decided to treat the 3 years of pre-trial bail in D.R.S.’s case as mitigating to the extent of reducing the length of the probationary portion of the sentence from 18 months to 12 months. As I said earlier, I am also influenced by the fact that D.R.S. will turn 19 next year.

I hope that this sentence - which will last in total, very close to 18 months - will assist in transitioning D.R.S. into a non-criminal life as an adult. But, whether or not my sentence achieves that goal, it is my view that after 3 years of bail and close to 18 months under the terms of this sentence, the court has made a proportionate response and must then back out of this young person’s life. 4. Probation Terms [ 42 ] Counsel were largely in agreement about the terms that would be appropriate.

I adopted their suggestions as I found them to be reasonable and to arise out of the helpful and thorough recommendations in the Pre-Sentence Report (November 30 th , 2015) and the two Youth Forensic Psychiatric Services reports (November 9 th and 20 th , 2015). 5. Ancillary Orders [ 43 ] A DNA databank order and firearms prohibition are mandatory for an offence of this sort and those orders have been made. The 5 year prohibition recommended by the Crown is reasonable and is not opposed by Defence counsel.

[ 44 ] Finally, I have made certain orders concerning access to records as it is important that the information available about D.R.S. be shared with those who will be working most closely with him. I have included D.R.S.’s mother and grandmother in that list. ____________________________ E.L. Bayliff Provincial Court Judge