Her Majesty the Queen - v. -, 2012 SKPC 161

IN THE PROVINCIAL COURT OF SASKATCHEWAN YOUTH JUSTICE COURT Citation: 2012 SKPC 161 Date: September 26, 2012 Information: 36654171, 44662780, 44662781 Location: Saskatoon ____________________________________________________________________________ Between: Her Majesty the Queen - and - N.B.L. Appearing: Ms. Dorinda Stahl Counsel for the Crown Ms.

Pat Tondevold Counsel 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 . _____________________________________________________________________________ SENTENCING DECISION D.C. SCOTT , J _____________________________________________________________________________

INTRODUCTION [ 1 ] N.B.L. has pleaded guilty to one count of aggravated assault thereby endangering the life of Paul Fischer contrary to s. 268(1) of the Criminal Code . He has also pleaded guilty to breaching his undertaking to keep the peace and be of good behaviour, contrary to s. 145(3) of the Criminal Code and failing to comply with a condition of a youth sentence that he report to his youth worker, contrary to s. 137 of the Youth Criminal Justice Act (YCJA) . [ 2 ] A pre-sentence report, psychiatric report and psychological report were prepared.

Sentencing submissions were made September 13, 2012; as well, the Court received as exhibits, photographs of the victim’s injuries; victim impact statements from the victim and four members of his family; the young person’s record; and a letter of apology written by the young person. [ 3 ] The Crown applied under section 42(9) of the YCJA for a determination that the aggravated assault be designated as a serious violent offence. The Defence did not oppose the Crown’s request. CIRCUMSTANCES OF OFFENCES [ 4 ] In the early morning hours of June 24, 2012, the victim Mr.

Fischer was awakened by voices from the alley behind his house, where his van was parked. Concerned that someone might be damaging his vehicle, he called out to them from his house, to which they replied “shut up”. In response, he went out to the alley with a baseball bat, which he keeps at the back door of his residence. [ 5 ] In the alley was this young person, N.B.L., with his girlfriend S.G. and T.E.H. and others. [ 6 ] According to N.B.L.’s statement to the police, he believed Mr.

Fischer struck S.G. with the bat, but later it was determined by police from S.G. that she was pushed and fell backward hitting her head. N.B.L. also advised the police that Mr. Fischer struck him on the back with the bat. The Crown disagrees but is not in a position to take issue with N.B.L.’s allegation. [ 7 ] According to N.B.L.’s statement, at one point, T.E.H. was trapped on the ground under Mr. Fischer. The bat came into N.B.L.’s possession, and he used it to strike Mr. Fischer five times on his head. N.B.L. and T.E.H. also kicked Mr. Fischer when he was down.

N.B.L. and the others fled, N.B.L. on his bike, leaving Mr. Fischer in the alley. [ 8 ] The complainant, Mr. Fischer suffered multiple, serious injuries to his head. His jawbone was shattered, every bone in his face was broken, he suffered a brain bleed, his skull was fractured and he lost teeth. When admitted to the hospital, his condition was critical. As a result of the assault, Mr. Fischer has lost the sight in his right eye and will lose the eye altogether.

He has also suffered from memory loss. [ 9 ] The aggravated assault gave rise to the breach of this young person’s undertaking to keep the peace and be of good behaviour given in relation to another charge, currently set for trial. [ 10 ] As well, this young person failed to report to his youth worker during the six month period of a probation order imposed December 1, 2011.

CROWN POSITION ON SENTENCE [ 11 ] The Crown asks to have the Court designate the aggravated assault as a serious violent offence. [ 12 ] On the aggravated assault, the Crown seeks the maximum allowable custodial sentence of 24 months and submits that 16 months of that sentence ought to be served in a secure setting, followed by 8 months of community supervision. In addition, the Crown recommends a period of probation to follow.

The Crown also seeks a DNA order and a weapons prohibition for a period of 2 years. [ 13 ] On the breach of undertaking and failure to comply with a youth sentence, the Crown recommends that I take into account the time spent in pre-sentence detention, now 95 days, and order a period of probation, concurrent to the probation order which would follow his custodial sentence. DEFENCE POSITION ON SENTENCE [ 14 ] The Defence takes no exception to the Crown’s request for a “serious violent offence” designation with respect to the aggravated assault.

It is the young person’s position that he ought to receive a custodial sentence of at least one year, to be followed by a period of probation with credit for pre-sentence detention on the basis of two days for each day spent in detention. The Defence submits that the breaches should be disposed of by concurrent sentences of probation. [ 15 ] The Defence does not oppose the request for a DNA order or weapons prohibition. ISSUES 1. Is the aggravated assault a “ serious violent offence ” ? 2. What is the appropriate sentence to be imposed for this young person? ANALYSIS 1.

Is the aggravated assault a “ serious violent offence ” ? [ 16 ] A “serious violent offence”, as defined in

section 2 of the YCJA , is one in which the young person causes or attempts to cause serious bodily harm. [ 17 ] The procedure for designating a serious violent offence is found in section 42(9) of the YCJA as follows: On application of 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 and endorse the information or indictment accordingly.

[18] Notice of the Crown’s application was provided to the young person and the Court on June 26, 2012. [19] If the Court is satisfied beyond a reasonable doubt that a young person, in committing the offence, caused physical orpsychological injury or hurt, which interfered in a substantial way with the physical or psychological integrity, health or well-being of thevictim, the Court must make the designation (R. v. D.(C.); R. v. K.(C.V.), 2005 SCC 78 , [2005] 3 S.C.R. 668). [20] Mr. Fischer will be significantly and permanently disabled as a result of this offence.

There can be no doubt that N.B.L.caused grievous bodily harm to the victim. The harm was intentional and foreseeable and interfered in a substantial way with thephysical and psychological integrity, health and well-being of the victim. [21] In these circumstances, and given the young person did not oppose the Crown’s application, I find this was a serious violentoffence and I designate it as such, pursuant to s. 42(9) of the YCJA. 2. What is the appropriate sentence to be imposed for this young person? OFFENDER’S PERSONAL CIRCUMSTANCES [22] At the time of the offence, N.B.L. was the age of 17 years and 8 months.

He identified himself as a Metis youth. He hasnever lived on a reserve and did not identify any connection to cultural activities. He stated he has not been subjected to racism orpoverty in the past. [23] N.B.L. lived with his mother in Saskatoon, although had moved back and forth between his parents’ residences since he wasnine years old. More recently, N.B.L. has not been getting along well with his father and has not seen him for more than one year,although he stated he would like to get to know his father better. His mother works outside of the home and his father is a tradesperson.

According to N.B.L. his sisters are positive pro-social supports to him. [24] This young person was neither working nor attending school, but indicated he had been seeking employment, however there issome question whether this is the case. He has completed his Grade 9 education and appears to suffer from a learning disability. He hasbeen expelled from school in the past for fighting and threatening other youth and school staff. In 2009, he worked as a dishwasher in alocal establishment.

During the twelve months prior to completion of the pre-sentence report, N.B.L. attended school or workedapproximately one-third of the time. [25] In the past, he has played hockey, but is no longer involved in this sport. N.B.L. has expressed some pro-criminal attitudesand he acknowledges his friends and acquaintances are older and delinquent. His goals are to complete his Grade 12 education, get ajob, have a family and change his offending behaviour. PREVIOUS FINDINGS OF GUILT [26] This young person’s record is extensive, consisting primarily of 27 compliance related convictions.

In addition, he has threeprevious convictions for property related matters and one of obstructing a police officer and one of uttering threats.

[ 27 ] He has received eleven previous sentences including five open custodial sentences, most recently in February 2012. REPORTS Pre-Sentence Report [ 28 ] According to the risk assessment in the pre-sentence report, this young person is at a level 5 risk to re-offend.

Risk factors include his criminal history; lack of stable education and employment; his family circumstances; lack of positive leisure and recreational activities; his companions; pro-criminal attitude and orientation; substance use and abuse; and general anti-social pattern. [ 29 ] In addition, concerns were raised regarding this young person’s lengthy record of non-compliance; his inability to solve problems or self-manage; anger management deficits; his association with older peers; his potential learning disability; weapon use; and the severity of the violence used in this offence. [ 30 ] The pre-sentence report identified no areas of strength for this young person.

Psychiatric Report [ 31 ] According to Dr. Declan Quinn, this young person’s history of impulsive and angry outbursts and defiance to authority are consistent with a diagnosis of Oppositional Defiant Disorder and Conduct Disorder. Dr. Quinn confirmed this young person has a previous diagnosis of ADHD for which he is currently taking medication. It was recommended N.B.L. receive programming for substance abuse problems and educational support. [ 32 ] Dr.

Quinn reported that his interaction with N.B.L. demonstrated the young person’s capacity to engage respectfully and highlighted interpersonal strengths including his sense of humour. Psychological Report [ 33 ] The psychologist, Mr. Brian McDonald assessed N.B.L. to be at a moderate to high level to re-offend violently, noting he is prone to conflict and capable of violence if provoked. Mr. McDonald reported that this young person’s overall functioning in the community could be viewed as poor, given his difficulties in maintaining a living arrangement, his struggles with school, and substance abuse.

The assessment indicated this young person experiences deep feelings of chronic anxiety and feelings of inadequacy. According to Mr. McDonald, N.B.L. requires anger management services to assist him in reducing his tendency to respond impulsively. VICTIM IMPACT [ 34 ] As a result of his injuries, Mr. Fischer was hospitalized for one week, which does not adequately reflect the severity of his injuries, previously discussed. He will be permanently disabled as a result of those injuries. Understandably, there has also been a psychological impact for this victim.

[ 35 ] Naturally, the impact extends to his family. Mr. Fischer’s sister-in-law read into the record, her victim impact statement, as well as those of Mr. Fischer’s wife and two children. His family has been traumatized, is fearful and will continue to suffer as a result of this incident. Because Mr. Fischer is no longer able to operate his business, the family has sustained financial loss. [ 36 ] As the Crown stated, the impact has been profound, permanent and permeates every aspect of this family. The impact on this victim and his family has been life-altering.

AGGRAVATING AND MITIGATING FACTORS [ 37 ] Aggravating factors are the egregious nature of the assault, including repeated blows with a weapon and the resulting serious harm done to the victim. At the time of this offence, the young person had been subject to release conditions in relation to a weapons offence. His record of findings of guilt, while not particularly reflective of violence, indicates a lack of compliance with court orders. [ 38 ] Mitigating is the early guilty plea, thereby saving the complainant the additional anguish of having to testify at a trial.

The young person was cooperative with police and provided a statement. While in pre-sentence detention, he has done reasonably well. Dr. Quinn assessed this young person as displaying some interpersonal strengths. [ 39 ] N.B.L. has expressed remorse for his actions in his apology letter submitted to the Court. The Crown asks me to consider his expressions of remorse in light of his comments made at the show cause hearing to the effect that he wished he would have killed the victim.

I accept that this comment is not a true expression of his feelings, but rather was made out of anger at not being released and is more indicative of his impulsive angry reactions. I accept his statements of remorse are genuine. SENTENCING PRINCIPLES [ 40 ] The principles enunciated in

section 3 of the YCJA reflect the importance of addressing the underlying circumstances of the young person’s offending behaviour; emphasizing rehabilitation and reintegration; and ensuring the young person is subject to meaningful consequences. The youth criminal justice system must be separate from that of adults, promoting fair and proportionate accountability consistent with greater dependency of young persons and their reduced level of maturity. [ 41 ]

Section 38 of the YCJA sets out the purpose and principles of sentencing a young person as follows:

(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) a 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, withparticular 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 the victims and thecommunity.

(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 the 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 or mitigating circumstances related to the young person or the offence that are relevant to the purposes andprinciples set out in this section. [42] The YCJA establishes a separate criminal justice system for young persons, recognizing their “heightened vulnerability andreduced maturity” (R. v. R.C., 2005 SCC 61 , [2005] 3 S.C.R. 99). Further, young people are presumed to possess diminishedmoral blameworthiness or culpability for their actions (R. v. D.B., 2008 SCC 25 , [2008] 2 S.C.R. 3). [43] According to Gray J. in R. v.

C.J., 2010 SKPC 113, proper considerations in assessing a fit youth sentence do not include theprinciple of deterrence, the need for retribution, or the expression of denunciation for the serious harm done (para. 36). REVIEW OF SENTENCING CASES [44] In R. v. (W.J.), 2004 SKCA (SentDig) 17, where a 15 year old male, addicted to alcohol and drugs, beat his girlfriend severelyand stomped on her face, a sentence of 8 months closed custody and 4 months community supervision was upheld by the Court ofAppeal, adding a probation period of 6 months. [45] In R. v.

S.T., 2010 SKPC 12 , 2010 SKPC 012, a 16 year old female was sentenced to 10 months and 22 days ofclosed custody followed by community supervision and probation, for three charges of aggravated assault, resulting in long-term injuryto the victims. [46] In R. v.

C.C.B., 2010 SKPC 181, a young person, who pleaded guilty to committing an aggravated assault and three breachesof recognizance, after striking a cab driver in the head and face with a machete, was given credit of 4 ½ months for pre-trial detentionand sentenced to a custodial sentence of an additional 12 months (6 closed, 6 open) to be followed by 6 months community supervision. The Court took judicial notice of the increasing level of violence being perpetrated by young people in the community. [47] In R. v.

B.(D.C.), 2000 SKCA (SentDig) 48, a 19 year old female who pleaded guilty to assault with a weapon after strikingher grandfather in the face with an axe was sentenced to 1 year open custody and 1 year probation. The Court of Appeal dismissed herappeal. [48] In R. v. M.(T.), 2009 SKCA (SentDig) 30, a 17 year old with a lengthy criminal record, and one of five involved in a home

invasion, where the occupant was badly beaten, was sentenced to 14 months secure custody, 7 months community supervision and 3 months probation. His sentence appeal was dismissed. [ 49 ] In R. v. M.(J.I.) , 1997 SKCA (SentDig) 18, a 17 year old with an extensive record and an alcohol problem, without motive attacked another person who had passed out at a party, causing the victim to suffer a broken arm and fractured skull.

His sentence of 18 months secure custody was upheld on appeal. [ 50 ] In C.(J.), supra , where a young person with no previous criminal history, was found guilty after trial of aggravated assault by wounding and disfiguring, resulting in the victim losing an eye, the Court held that a period of probation for 18 months would provide a meaningful consequence and best promote his rehabilitation and reintegration into society. PRE-SENTENCE DETENTION [ 51 ] As of this date, N.B.L. will have spent 95 days in pre-sentence detention.

The Crown maintains that he ought to be given one day’s credit for each day spent in detention, to be taken into account only in sentencing on the breaches. The Defence submits that this young person ought to be given credit on the basis of 2 for 1, based upon the practice in this Court. [ 52 ] The cases relied upon by the Crown are distinguishable from the case before me. In R. v.

C.R.B., 2009 SKQB 176 , where a young person who pleaded guilty to manslaughter, and spent from September 2006 to May 2009 on remand in Kilburn Hall, was given six months credit for remand time, as the young person benefitted substantially from the structured lifestyle, educational and recreational programs received and because the young person agreed to waive remand credits entirely so as to be eligible for IRCS programming. [ 53 ] In S.T. , supra , credit was given on the basis of 1.5 for 1 for time served in pre-trial custody, following the decision of R. v. Flaten , 2009 S.J.

No. 709 (C.A.) , which dealt, in part, with remand credits available for a young person sentenced as an adult. [ 54 ] The Defence argues that the practice in this Court is to grant credit on the basis of two days for each day spent in detention. In R. v. J. (T.F.), 2010 SKPC 88 , Whelan J. held that as a general rule, credit will be granted to young persons on the basis of 2 for 1, although there will be cases where the circumstances may call for departure from a general rule.

In C.C.B. , supra , the Court followed J. (T.F.), supra , and granted remand credit on the basis of 2 for 1. [ 55 ] N.B.L. has spent his pre-sentence detention in a secure facility. While on remand, he has done reasonably well having achieved Level 3 before losing a level because of smoking. He has been attending school during his time in detention. The Defence maintains his behaviour has improved while in detention. In addition, this young person remained in detention while three reports were prepared and my sentencing decision was completed. [ 56 ] I will allow an approximate credit of 2 for 1.

N.B.L. has spent 95 days in pre-sentence detention; therefore he will receive credit for 6 months. DECISION [ 57 ] Because I have determined the aggravated assault to be a serious violent offence pursuant to s. 42(9) of the YCJA , a deferred custody and supervision order is not available, but neither is a custodial sentence required. If a custodial sentence is imposed, the maximum length of a combined custody and supervision order available in these circumstances is two years (s. 42(2)(

n) YCJA ). [ 58 ] It is difficult to conceive of a more serious aggravated assault, given the repeated blows to the victim’s head with a baseball bat. Although he was with a group, N.B.L. was the one who delivered the blows with the bat. In these circumstances, the harm to the victim was intentional and foreseeable.

[ 59 ] It is my view a period of custody is necessary to provide meaningful consequences and to achieve meaningful progress for N.B.L. The Court has little confidence that this young person would successfully comply with conditions, if probation alone were imposed, given his history of non-compliance. [ 60 ] Further, it is my view that there is no reasonable alternative or combination of alternatives to a secure custodial sentence.

N.B.L. has expressed to the writer of the pre-sentence report that he was unsure he would be able to successfully complete a lengthy period in open custody. [ 61 ] The writer of the pre-sentence report suggests that a period of secure custody and supervision would allow for N.B.L.’s referral to support services such as the psychologist from the High Risk Violent Young Offender Initiative, an addictions counsellor and a mentor while in custody. He would have the opportunity to work on his education and identify any special needs in this regard.

His medication would be provided to him regularly and would be monitored. He could begin to address the factors which contribute to his risk to public safety. [ 62 ] Further, a lengthy sentence would allow the time frame required for N.B.L. to stabilize and engage with support services prior to his release in the community. Such a sentence would assist N.B.L. in participating in programming for substance abuse, as recommended by Dr. Quinn and for anger management, as recommended by Mr. McDonald.

Given N.B.L.’s extreme and violent response in this case, it is clear that intensive programming for anger management is required. It is by addressing the circumstances underlying N.B.L.’s offending behaviour that public safety can best be protected. SENTENCE [ 63 ] On the aggravated assault (Information 44662780), it is my view that the appropriate sentence is a secure custodial sentence of 24 months to be followed by a period of probation.

Affording him credit of 6 months for pre-sentence detention, I impose a sentence of an additional period of 18 months, 12 months of which will be served in closed custody followed by 6 months of community supervision. [ 64 ] The period of custody and supervision will be followed by a term of probation for 12 months, on the following conditions that you: 1. Keep the peace and be of good behaviour, and appear before the Youth Justice Court whenever required to do so by the Court; 2.

Report forthwith following the expiry of your community supervision order and thereafter when required to do so by the Youth Worker and follow all lawful instructions of the Youth Court Worker; 3. Reside at a residence designated by the Youth Worker and not change that address without the express permission of the Youth Worker or designate; 4. Abide by a curfew by being in your designated residence between the hours of 10:00 p.m. and 7:00 a.m. daily, unless you have prior dated written permission of the Youth Worker; 5.

Present yourself personally to any peace officer/youth worker checking on your curfew or residence; 6. Have no contact directly or indirectly with Paul Fischer or Kim Mighton or their children; 7. Not be within a one-block radius of 1808-17 th Street West, Saskatoon; 8. Have no contact directly or indirectly with the co-accused T.E.H.; 9. Attend school, work or a day program and not miss classes except with a medical note from your doctor for illness; 10. Refrain from the use, possession or consumption of alcohol and non-prescribed (illicit) drugs; 11.

Attend for and participate in drug and/or alcohol addictions assessment, treatment, education, counselling as arranged by the Youth Worker and participate in treatment services as recommended by the addictions worker which may include in-patient treatment; 12. Participate in personal and anger management counselling as directed by the Youth Worker, which may include participation in the

High Risk Violent Young Offender Program through Child and Youth Mental Health Services; 13. Participate in the mentorship program as directed by the Youth Worker; 14. Attend all psychiatrist appointments as directed and take all medication prescribed by your doctor or psychiatrist; 15.

Not possess any weapons as defined by the Criminal Code or knives outside of your residence. [ 65 ] On the offences of breach of undertaking (Information 44662781) and breach of youth sentence (Information 36654171), I impose a period of 12 months probation to be served concurrent to the probation order imposed on the aggravated assault and concurrent to each other. [ 66 ] According to s. 487.051 of the Criminal Code , aggravated assault is a primary designated offence and the provision of a DNA sample is mandatory.

Therefore, N.B.L. is ordered to provide a sample of his DNA to be included in the DNA Data Bank. [ 67 ] Pursuant to s. 51(1) of the YCJA , I impose a mandatory weapons prohibition. Therefore, N.B.L. is prohibited from possessing any firearms, cross-bow, prohibited weapon, restricted weapon, prohibited device, ammunition, prohibited ammunition or explosive substance for a period of two years. ______________________ D.C. Scott, J