R. v. Kipling, 2021 MBPC 46

CITATION: R. v. Kipling, 2021 MBPC 46 THE PROVINCIAL COURT OF MANITOBA BETWEEN Her Majesty the Queen ) A. Millo for the Crown ) - and - ) ) Jerry Robert Kipling ) M. Cook for the Accused ) ) Judgment delivered October 6, 2021 ) M.P. Thompson, P.J. INTRODUCTION [ 1 ] Jerry Robert Kipling, a thirty-one year old Indigenous man, was convicted after trial of aggravated assault, contrary to

section 268 of the Criminal Code of Canada . The accused had pled not guilty and the sole issue at trial was identity. The reasons for the trial verdict, which concluded the accused was the attacker, were issued on March 5, 2021 and are found at R. v. Kipling , 2021 MBPC 11 . [ 2 ] This vicious, unprovoked and unexplained attack took place in Winnipeg on May 30, 2020. The fifteen-year-old victim was leaving a pizza restaurant, when the accused walked up from behind and struck him in the head with the claw end of a hammer.

The accused struck him with such force that the wooden handle broke off, leaving the claw end of the hammer imbedded in his skull and brain. The victim suffered life-changing injuries. [ 3 ] The accused also pled guilty to three offences arising from his arrest on June 14, 2020: possession of a weapon dangerous to the public peace (a hatchet) and two breaches of his release order, by failing to reside at the address specified and by possessing a weapon. [ 4 ] At issue is the appropriate sentence for this offence and this offender.

Sentencing materials included: [ 5 ] An Agreed Statement of Facts filed at the trial of the matter containing: • Tab 1 - medical

summary of the victim’s injuries and medical treatment; and • Tab 2 – photographs of the victim at the crime scene prior to paramedics arriving. [ 6 ] Filed at the sentencing hearing were: • Exhibit S1 – Pre-Sentence Report with Gladue Assessment dated April 8, 2021(Tab 5 of Book of Sentencing Materials); • Exhibit S2 – Book of Sentencing Materials containing transcripts of the accused’s two prior convictions for aggravated assault and a prior Pre-Sentence Report with Gladue Assessment dated March 24, 2015; • Exhibit S3 – Victim Impact Statement of the victim; and • Exhibit S4 – Victim Impact statement of the Aunt and caregiver to the victim. [ 7 ] Crown and Defence filed casebooks containing relevant sentencing precedents in advance of their oral submissions.

After the sentencing hearing on June 16, 2021, I reserved my decision. These are my reasons for sentence. CIRCUMSTANCES OF THE OFFENCE [ 8 ] After embedding the hammerhead in the victim’s skull, the accused picked up the wooden handle that had snapped off due to the force of the blow and walked away, as if nothing had happened. The injuries to the victim are described in the Agreed Statement of Facts (Trial Exhibit 1). The hammer damaged the region of the brain primarily responsible for controlling the right side of his body.

The victim remained conscious with the claw end of a hammer embedded in his head, while EMS transported him to hospital. [ 9 ] Emergency surgery was necessary. A large

section of bone flap from his skull was removed to remove the hammer. The bone flap was not replaced in order to allow the brain to swell and because it posed an infection risk. [ 10 ] Following surgery the patient was cared for in the pediatric intensive care unit. Unfortunately, despite best efforts to cleanse the wound at the time of his initial surgery, the victim developed a brain infection at the site of the hammer injury. A second neurosurgery was required on June 17 to cleanse the site of infection. The victim was discharged from the hospital on June 24, 2020.

[ 11 ] The victim’s right arm and hand function have minimally improved since his initial injury. In a medical report dated February 6, 2021, his doctor does not anticipate that he will recover dextrous right hand movement as required to grasp or manipulate objects. [ 12 ] The victim filed a Victim Impact Statement. His life changed forever on a day he thought was just going to be a regular day. When he turned his back to leave the restaurant, the accused lunged at him with a hammer. The trauma he endures remains fresh in his mind. [ 13 ] The victim’s mother died in 2017.

His aunt, who is his caregiver, also filed a Victim Impact Statement. The victim went out for lunch and they became worried when he did not return for a couple of hours. His family went looking for him. They found the crime scene where Police informed them he had been struck with a hammer. They were left in a state of shock and disbelief. She noted that the victim has never been in trouble with the law is not a gang member and is not violent. They were very worried they going to have to make a slide show for another family member’s funeral. [ 14 ] Although the surgery went well, the aftermath has been difficult.

He was hospitalized for a period of time when, due to COVID restrictions, no one was allowed to visit him except his father. The victim felt lonely and depressed. When he finally came home, he was not the same. He lost all use of his right arm. He has to wear a brace on his right hand to keep it from curling up. He stutters a lot when he talks and he has to wear a helmet (which he is embarrassed to wear). He does physiotherapy rehabilitation 3-4 times per week.

His father has had to leave work on multiple occasions to drive him to therapy, which has caused him to miss hours of work. [ 15 ] He is not the same since the incident. This has changed the whole family. None of them feels safe walking in public because of this random act of violence. The victim is now considered special needs and due to the mental and physical trauma of his injuries, he will never live a normal life as a teenager.

CIRCUMSTANCES OF THE ACCUSED [ 16 ] A Pre-Sentence Report with a Gladue assessment dated April 8, 2021 was filed with the Court. [ 17 ] Defence counsel emphasized the impact of colonization and Gladue factors on this accused’s life. [ 18 ] The accused’s mother, who died in 2016 or 2017, suffered from alcohol and drug addiction. Her family was from Peguis First Nation and his father is from Broken Head. His maternal grandparents came from Peguis First Nation, but his mother was born and raised in Winnipeg.

As documented in his Gladue assessment from 2015, his mother recalled her side of the family had all been through Residential Schools. She acknowledged the impact of that trauma on her maternal grandmother who had “passed things down to her family”. Her mother had passed systemic factors down to herself, which she in turn passed on to subject and his siblings. She reflected on poverty, loss of culture, language, spiritualism, domestic violence and abuse and the loss of ability to parent in a loving and supportive way.

She referred to her life history as a “cycle of patterns” and a long struggle back to surviving. [ 19 ] The accused is the oldest of four boys with one older sister. Although he denied ever feeling neglected, his parents separated when he was a child. He had an unstructured childhood; his mother says that he was “lost” as a child. [ 20 ] In a report dated March 25, 2015, his school guidance counsellor described him as a troubled child who did not have family supports in place to prevent problems in his future. The counsellor recalled the subject had struggled with personal issues, which he internalized.

He witnessed and intervened when the subject was banging his head against the wall of his room trying to cope with personal turmoil. The counsellor reported the subject was a sad boy who took his anger out on himself. [ 21 ] He dropped out of school in grade 8, began hanging around with negative peers and was influenced by their lifestyle. After his parents separated, he lashed out and turned to drugs and alcohol. [ 22 ] Defence argues that there was no loving support or proper guidance offered to him and no stability.

When he started to act out violently at age 12, this was a direct result of a tragic upbringing by parents devoid of love and guidance. [ 23 ] The Crown also filed a casebook of Sentencing Materials marked as Exhibit S2, which at Tab 1 contains the Trial Judge’s recitation of the facts from October 11, 2013 that resulted in the accused’s two prior convictions for aggravated assault. [ 24 ] Tab 2 of that Exhibit contains the transcript of sentencing submissions made to Justice Toews of the Court of Queen’s Bench on April 16, 2015 respecting those two convictions.

Tab 3 contains Justice Toews’ reasons for sentencing the accused to three years jail, less time in custody, on April 16, 2015. Tab 4 contains The Pre-Sentence Report with Gladue Assessment from that sentencing, dated March 24, 2015 and Tab 5 his current Pre-Sentence Report with Gladue . [ 25 ] Both Pre-Sentence reports reflect negatively on the accused’s thinking and actions. [ 26 ] The author of the current Pre-Sentence Report observed that Mr. Kipling presented as someone who is not remorseful for this offence nor did he take any responsibility whatsoever. [ 27 ] Mr.

Kipling presented with a lack of victim empathy. When asked if he had thoughts regarding the victim, he stated he did not want to answer, he did not have to answer and he had no input or any thoughts about the victim. The report writer noted the victim of this offence has had his life inevitably changed. [ 28 ] The Pre-Sentence Report writer made a note that the accused said that when he was arrested for this offence he had beer in his backpack and wondered what happened to it. [ 29 ] The accused has been in custody since his arrest on June 13, 2020.

The subject said that while in jail he had not been completing any programs due to the pandemic. However, a review of the file information indicated he was removed from the Thinking

Awareness Group Program because he had been confrontational with the program facilitator. The accused then refused to attend the next session. [ 30 ] While in custody, the subject attempted employment with the Correctional Centre in the summer of 2020, however, he quit shortly after starting. [ 31 ] The Report writer advises that despite Mr. Kipling asserting he would be willing to comply with programming and supervision, his overall attitude and past involvement with community supervision suggested otherwise.

His custody case manager at Brandon Correctional Centre highlighted that the subject was not motivated to do anything on his own as far as cognitive behavioral therapy (CBT) workbooks or education. [ 32 ] Defence counsel advises that while in custody, the accused states he engaged in bible studies and has 30 certificates of course completion. [ 33 ] His case manager was asked if he was aware of whether the accused had any cognitive delays or learning disabilities.

He indicated there was no diagnosis however, the subject required things to be explained to him simply. [ 34 ] The 2015 Pre-Sentence Report canvassed the dynamics of the accused’s relationship with his mother, who died in 2016 or 2017. She had reported him behaving aggressively at the age of twelve, hitting her in the face and attacking her on the stairs. On another occasion the subject told his mother “go ahead call the Police; I’ll make it worth the time going back this time”. She advised the family was fearful of him. Presently the subject stated he does not talk to his father.

He appears to be totally estranged from his immediate family. He was unable to provide current contact information for any of his siblings. [ 35 ] In terms of alcohol and drug use, Mr. Kipling reported alcohol consumption has never been a problem and his past offences did not take place while he was under the influence. This information was demonstrably false. The accused was also not forthcoming with providing details regarding his illegal drug use although he did admit he had been addicted to smoking meth for five years. He appears to be in the contemplative stage of addressing his addictions.

He identified that he struggled with anxiety. [ 36 ] The report writer noted the accused possessed several indicators of early and diverse antisocial behaviour. He was arrested under the age of sixteen. He has a criminal record for assault and violence. He has a history of violations within the community when on supervision. He was assessed as possessing a criminal attitude, given that he has not been receiving any income through gainful employment or through social assistance in the past ten years. His unconventional lifestyle along with his attitude suggested he is supportive of crime.

He denied being in a gang or having gang involvement. [ 37 ] Regarding safety concerns, the subject has been involved with the use of weapons in the criminal justice system. In particular, while in custody awaiting the outcome of this case, he was convicted by the prison disciplinary board for stabbing a fellow inmate with a pencil. [ 38 ] To summarize, he is assessed as a very high risk to reoffend. He has a substantial criminal history. He was first arrested at age 15 and has been convicted of serious criminal offences, including violent offences.

His offences have resulted in terms of incarceration on numerous occasions. He has a history of being non-compliant with Court ordered conditions. He was non-compliant with a Release Order at the time of his arrest. He has demonstrated behavior in the past year, which indicates he has been supportive of crime.

His lack of education, employment history, prosocial activities and issues in school suggested a pattern of generalized trouble in his life. [ 39 ] The subject’s overall attitude presented as someone who is not remorseful for his actions and he did not present as an individual who wants to make the necessary changes in his life to lead him towards living a more positive lifestyle. His lack of cooperation with providing information for the Pre-Sentence Report and the previous Pre-Sentence interview was a substantial indicator of his overall attitude relating to criminal behaviour. [ 40 ] While Mr.

Kipling was not forthright in providing information with regard to his alcohol consumption and drug involvement, file information compiled by probation services has made it very clear he has struggled for a long period with both illicit drug use and alcohol consumption. The subject talked about using alcohol at the age of nine and he was worried about what happened to the alcohol he had in his backpack the day he was arrested for this offence. He presently lacks a strong network of positive peers.

He is not seen as a suitable candidate for community supervision. [ 41 ] His criminal record, which is attached to the Pre-Sentence Report, shows on January 28, 2021, he was convicted of assaulting a Peace Officer for which he received a total of a hundred and twenty days jail. His record contains fifteen breaches, four crimes of violence including two aggravating assaults. He has been on six separate Probation Orders. [ 42 ] The prior aggravated assaults involved unprovoked attacks on his aunt and cousin with a weapon. He struck his aunt in the face knocking her down. He stabbed her in the shoulder.

He also cut and stabbed his nephew when he tried to intervene to break up a confrontation with another woman. [ 43 ] Justice Toews, the sentencing Judge, voiced concerns that this could have been a manslaughter but for luck. There was no reason for the two attacks. He showed little empathy and no insight into the crimes in the Pre-Sentence Report that was prepared. The primary focus of the concurrent three-year sentence imposed by the Court on those two charges appears to have been a recognition of his young age. After credit for time served, he received a provincial sentence going forward, with probation.

However, Justice Toews cautioned he was still very concerned about him. [ 44 ] The Pre-Sentence Report and Gladue Report indicates his maternal grandparents attended the Residential School System and lost their parenting skills by being separated from their parents. There was domestic violence in his extended family. He lived in abject poverty with a loss of his traditions. There was substance abuse in his family, which enveloped him. He is a user of crystal meth, although Defence concedes there was no evidence he was under the influence of crystal meth at the time of the offence.

Defence advised the Court that the accused told him that he feels bad and hopes that the victim recovers.

SENTENCING PARAMETERS [ 45 ] The Criminal Code of Canada prescribes a maximum sentence of fourteen years for this indictable offence. There is no minimum penalty.

SENTENCING POSITIONS [ 46 ] Crown and Defence are far apart on their sentencing positions. [ 47 ] The Crown advocates for a global sentence of twelve years and nine months. [ 48 ] Given his two prior convictions for aggravated assault, the Crown takes the position that a twelve-year sentence is justified for this offence, pointing to denunciation and general deterrence as the paramount sentencing principles at play with a lack of mitigating factors. [ 49 ] The Crown proceeded summarily on the weapons and breach offences arising from the accused’s arrest, on June 14, 2020, when he was found in possession of a hatchet and a knife.

The accused pled guilty to section 88(1) of the Criminal Code of Canada , possess weapon for a purpose dangerous to the public peace. The Crown seeks a six-month jail sentence for that offence. On the two Release Order breaches, the Crown seeks ninety days concurrent to each other, but consecutive to the possess weapon and consecutive to the aggravated assault.

The Crown noted the fact the accused never resided at the address he provided to the Court in his Release Order, is an aggravating factor. [ 50 ] Defence seeks a penitentiary sentence between four and eight years on the aggravated assault, plus a short consecutive sentence on the possess weapon dangerous to the public peace and concurrent time on the breaches of his Release Order. [ 51 ] Defence submits that Gladue factors reduce the accused’s moral culpability and therefore ought to reduce the length of sentence the Court imposes. [ 52 ] The accused has a total of 184 days of pre-sentence custody according to the Correctional Services Sentence Administration supervisor.

At enhanced credit of 1.5 days that is the equivalent of 276 days of time served. SENTENCING AUTHORITIES / AGGRAVATED ASSAULT [ 53 ] The Manitoba Court of Appeal in R. v.

Kravchenko , 2020 MBCA 30 , did not endorse a general range of sentence for aggravated assault in Manitoba. (para 42) [ 54 ] It indicated the Court must assess the offender’s moral culpability by determining the nature of the violence used and the offender’s state of mind or awareness. (para 53) [ 55 ] A fact pattern involving an unprovoked random attack on a stranger with a weapon, where the victim is going about their daily business peacefully is, however, a clear category of aggravated assault. (para 56) [ 56 ] Case precedents reviewed by the Court of Appeal reflect the historic concern of the Courts to severely punish offenders “who need no outside encouragement to randomly inflict significant violence against strangers with weapons”. (para 62) [ 57 ] To summarize, the sentencing range for cases involving aggravated assault involving an unprovoked random attack on a stranger with a weapon with significant resulting consequences, is a term of imprisonment of between four and eight years. (para 63) [ 58 ] Reasons for departure from that range must come from the sentencing judge’s assessment of proportionality. (para 68) [ 59 ] Recidivism could be a reason to depart upward from an accepted range. (para 69) [ 60 ] In my view, this case is one that justifies a sentence that departs upwards from the accepted four to eight year range. [ 61 ] Video footage showed Jerry Kipling as he walked into the pizza restaurant.

There is no indication from that video that the offender was intoxicated or high and it is clear that he was not grossly intoxicated. He also had the presence of mind to reach down and retrieve the hammer handle that snapped off from the blow and take it with him. [ 62 ] The Crown cites R. v. Kravchenko as a relevant sentencing precedent. That case involved a fifteen-year-old girl in a church being stabbed twice by a stranger from behind.

While the Court of Appeal reduced the sentence of ten years imposed by the trial Judge to one of eight years, some of the distinguishing features in that case include: the accused Kravchenko was gainfully employed, had been sexually abused as a child, had only one prior criminal conviction for simple assault and did not leave the scene. In addition, Mr. Kravchenko pled guilty. [ 63 ] In Kravchenko , the range of four to eight years warranted the top end of that range of eight years due to the fact the victim of the very violent crime was a child.

At paragraph 69 of that decision, the Manitoba Court of Appeal indicated that a recidivist could warrant a sentence above that range. The Crown notes that Mr. Kravchenko was not a recidivist; he had never been to jail. In addition, the trial Judge had exceeded the recommended range of counsel. The Court of Appeal, in reducing the sentence from ten to eight years, also factored in the collateral consequence that Mr.

Kravchenko faced deportation due to his conviction. [ 64 ] Similar to the fact pattern described in Kravchenko , Jerry Kipling’s aggravated assault was an unprovoked, random attack on a stranger, a child, with a weapon. In contrast to the accused in Kravchenko , Mr. Kipling is at a higher level of moral culpability. There is an absence of evidence of a mental disorder. The accused and Corrections have been unable to pinpoint the source of his aggression,

meaning that the risk he poses cannot be addressed. Consequences to the victim are always a factor in arriving at a fit sentence. In this case, the consequences are catastrophic, as the victim has been disabled for a lifetime. Unlike Kravchenko , this conduct was not out of character for Mr. Kipling, who has frequently spent time in prison. He was on bail at the time of this offence for crimes of violence, stabbed an inmate with a pencil while in custody, and has a related record for two aggravated assaults. The Crown submits that Mr.

Kipling had reached the point where the end goal must be keeping society safe and called for a sentence well beyond the range of Kravchenko, nearing the maximum penalty in the Criminal Cod e of 14 years.

When considering the totality principle, the Crown argued that the possess weapon dangerous to the public peace and the breaches of the Release Order merited consecutive sentences as these were his normative behaviours; carrying a hatchet just weeks after attacking the victim with a hammer. [ 65 ] An appropriate sentence must be determined for this offence, in accordance with the purpose and principles of sentencing set out in

section 718 of the Criminal Code . [ 66 ] The fundamental purpose of sentencing offenders is to contribute to respect for the law and maintenance of a just, peaceful and safe society.

Section 718 of the Criminal Code requires Courts to structure sentences for offenders that attain that purpose by addressing objectives which include denunciation, specific and general deterrence, rehabilitation, separation of offenders from society to protect the public where necessary, provide reparation to victims of the community and promote responsibility of offenders in the acknowledgment of harm done to victims or to the community. [ 67 ] A sentence must be proportionate to the gravity of the offence and the degree of responsibility of the offender (

section 718.1 Criminal Code ). The offence for which this accused is being sentenced is very serious. [ 68 ] Given the nature of this offence and the accused’s related record for violence, the sentencing objectives of denunciation and general deterrence must be paramount amongst the sentencing principles considered. [ 69 ] Mitigating and aggravating circumstances of the offence and the offender must be taken into account (

section 718.2 (

a) Criminal Code ). [ 70 ] AGGRAVATING FACTORS INCLUDE: • This was an unprovoked attack from behind; • A weapon was used; • It was an attack on a child (a 15-year-old); • It inflicted life-changing injuries on the victim; and • The accused has prior related convictions for aggravated assault. [ 71 ] MITIGATING FACTORS INCLUDE: • The accused’s Gladue factors pursuant to

section 718.2 (

e) of the Criminal Code . ANALYSIS AND DECISION [ 72 ] The Crown accurately characterizes the accused as an unrepentant violent offender who shows no remorse and who is resistant to interventions. He lacks motivation to change and has never admitted guilt or responsibility. Correction officials report that he has maintained threatening and abusive behaviour while in jail. It is noteworthy that during the probation portion of the sentence imposed in 2015, his attendance with the Probation Officer was sporadic and he was non-compliant with programs.

The accused was breached for not attending and reporting and did not complete the Domestic Violence Program. He struggled with substance abuse. He was directed to complete AFM treatment but never followed through. [ 73 ] While the Crown acknowledges he could have undiagnosed cognitive delays, they do not rise to the level of reducing his moral culpability. [ 74 ] The risk of foreseeable harm was clear.

The accused took a hammer out of his backpack, followed the victim for several steps and hit him in the head using the claw end of the hammer as the point of impact to the top of his skull with such force the wood handle broke off. [ 75 ] The nature and degree of consequences to the victim were horrific in the short term. In the long term, they are catastrophic as he is permanently disabled. [ 76 ] The accused had sufficient awareness to pause and pick up the hammer handle and take it with him. Upon his arrest by police he asked, “Where are my fingerprints?” knowing that he had taken the hammer handle with him.

This points to a state of awareness at the time of the attack, such that he was attempting to avoid criminal accountability. [ 77 ] There is no known motive for this attack. The source of the accused’s aggression cannot be pinpointed, increasing his dangerousness. This justifies a lengthier sentence. [ 78 ] The Crown acknowledges that there are Gladue issues at play but they do not mandate a reduction in sentence. The Crown is of the view that the accused has to be kept separate from the rest of society to keep the public safe.

The focus here must be on the circumstances of the offence and less so on the circumstances of the offender, particularly where the accused’s criminal record highlights the very high risk that he will reoffend. In particular, this was his third unprovoked attack with a weapon. The Crown points to the chances of rehabilitation being virtually non-existent as the accused has violent outbursts that persist while in jail.

[ 79 ] The accused has pre-sentence custody of 184 days to his credit as of today’s date. At enhanced credit of 1.5 days, that is effectively 276 days of pretrial detention. The Crown also seeks a

section 109 ten-year mandatory firearms and weapon prohibition, an order for primary DNA, forfeiture of the items seized and a no contact order under

section 743.21 of the Criminal Code as against the complainant, his aunt and the accused’s two family members who testified against him at his trial. [ 80 ] I note that when I asked the accused if there was anything he wanted to say his comments focused solely on his concerns about what sentence he might be facing. He stated, “twelve years is a long time…this is not a murder case…that’s pretty much a manslaughter…and this isn’t a manslaughter case”.

Later after we recessed and he spoke to his lawyer, he indicated that he would be willing to accept a twelve-year sentence, but his lawyer cautioned him not to act out of frustration or anger. [ 81 ] The significant Gladue factors that have affected Jerry Kipling’s life are directly linked to colonization and his family’s history of trauma with residential schools. However, at age thirty-one, he shows no insight, remorse or any willingness to change.

The vicious and unprovoked nature of this offence, the accused’s uncaring attitude towards it and his very high risk to public safety leads me to conclude that protection of the public, personal deterrence and denunciation must be the focus of this sentence. [ 82 ] His violent behaviour has now escalated to the point of attacking a stranger in a restaurant during lunch hour. The evidence establishes the accused is a recidivist.

That fact merits an upward departure from the high end of the four to eight year range established in Kravchenko . [ 83 ] On the count of aggravated assault, I sentence the accused to ten years jail. [ 84 ] On the count of possession of a weapon dangerous to the public peace, I sentence the accused to six months consecutive. [ 85 ] On the two counts of breaching his Release Order, I sentence the accused to three months concurrent to each other, but consecutive to the other charges for a global sentence of ten years and nine months. [ 86 ] The consecutive sentences are not crushing and I make no reduction pursuant to the totality principle. [ 87 ] The accused will be credited for 276 days of presentence custody. [ 88 ] Aggravated assault is a primary designated offence, accordingly I order the accused provide a sample of his DNA.

I order forfeiture of the items seized from the accused at the time of his arrest. Pursuant to

section 109 of the Criminal Code , I make an order prohibiting the accused from possessing any firearm, crossbow, prohibited weapon, restricted weapon, prohibited device, ammunition, prohibited ammunition and explosive substances for a period of 10 years. [ 89 ] Pursuant to

section 743.21 of the Criminal Code , the accused is prohibited from any contact directly or indirectly with the victim, the victim’s father or the two members of the accused’s family who testified as witnesses. “Original signed by” M.P. Thompson, P.J.