Her Majesty the Queen - v. -, 2017 SKPC 43

IN THE PROVINCIAL COURT OF SASKATCHEWAN Citation: 2017 SKPC 043 Date: May 05, 2017 Information: 45443381 Location: Saskatoon _____________________________________________________________________________ Between: Her Majesty the Queen - and - Kyle Landon Neapetung Appearing: Frank Impey For the Crown Lori Johnstone-Clarke For the Accused JUDGMENT B.M. SINGER , J [ 1 ] Kyle Neapetung pled guilty to charges that he did unlawfully confine and commit an aggravated assault on Brenden Peters between March 30 and April 3, 2016, contrary to ss. 279(2) and 268(1) of the Criminal Code .

He was arrested on these charges a few weeks after April 3 and at that time he was carrying a sawed off .22 calibre rifle, with ammunition. Since he was prohibited from carrying a weapon this resulted in charges under ss. 86(1) , 88 , 96(2) (

a) and 117.01(1) of the Criminal Code . He pled guilty to those charges as well. [ 2 ] These two separate incidents are related as they are both the result of the offender being a active and enthusiastic member of the Indian Posse street gang at that time.

[ 3 ] On March 30, 2016 Mr. Peters, the victim, had a stolen laptop and a cell phone that he wished to sell. He happened upon an acquaintance who took him to a house where she thought some individuals would be interested in purchasing those items. The house was a gang house, occupied by members of Indian Posse (IP), a local street gang. The accused and a number of other Indian Posse members were present. [ 4 ] In the basement of this house someone recognized Mr. Peters as a member of the Terror Squad, a rival gang. Mr.

Peters attempted to leave but he was restrained, partly by the accused who went so far as to hit Mr. Peters hands with a hammer as Mr. Peters was holding onto the bannister of the stairs while others were pulling him back to the basement. [ 5 ] The victim was punched and hit repeatedly until he lost consciousness. He awoke bound and tied to a pole in the basement, a pillow slip over his head. Over the course of the next three days he was beaten, cut with a knife, had the letters IP carved into his body in several places, cut around his eye and hit on the head to such extent that his eyes were swollen shut.

He was stabbed in the back and burned with a butane torch on several places on his body. He was not allowed to use the toilet so urinated and defecated in his pants. He was not fed, except for a bit of bread and water. He was told he was going to be killed. [ 6 ] On April 3 rd , Mr. Peters was put in the trunk of a car, with his head still covered, and transported until the vehicle hit a median and his abductors ran from the scene. He was able to get out of the trunk and make his way to St. Paul’s Hospital. [ 7 ] While there, Mr. Peters saw the accused, who was wearing Mr.

Peters’ hat, and the accused warned him not to say anything. [ 8 ] When the accused was arrested he gave a statement to the police admitting his role in these offences. Apparently a member of the Indian Posse had recently been shot, by a member of the Terror Squad, injuring his eye. The confinement and torture of Brenden Peters was in retaliation for this. The accused admitted hitting the complainant with a hammer, hitting and punching him repeatedly, cutting his face, near his eye with a knife and carving the letters IP into his body in several places. Mr.

Neapetung went on to admit he stabbed the complainant in the back. He also admitted burning him with a butane torch on several parts of his body. Apparently, Mr. Neapetung got this idea from a tv show and was intending to burn off any Terror Squad tattoos, but when he did not see any, he decided to burn Mr. Peters anyway. [ 9 ] The accused stated it was his intention to drive Mr. Peters away from their gang house and let him go but that he hit a meridian and ran away.

He admitted to the police that he tried to intimidate the victim at the hospital. [ 10 ] Besides the burns, cuts and stab wounds, bruises and scrapes that are vividly shown in Exhibit P-2, a booklet of 150 photos, Mr. Peters, the victim, suffered a broken nose and cheek bone, and scrapes and abrasions on his wrists where he was tied up. There is no doubt he suffered psychological pain as well. [ 11 ] There was no Victim Impact Statement but when Mr. Peters was interviewed, he complained of physical, emotional and psychological trauma. He was still concerned for his own safety and has recurring nightmares.

He was living in fear. [ 12 ] Upon his arrest in a public street in Saskatoon on April 20, 2016, the accused was still wearing the victim’s hat. He had on his person a .22 calibre round and a red bandana, a well known gang symbol. Mr. Neapetung is subject to a s. 109 Order and is not allowed to have weapons, or ammunition in his possession therefore he was arrested. A search of his backpack revealed a .22 single shot rifle, with the barrel and stock cut off, making it into a prohibited weapon, as well as seven more rounds of ammunition.

He told police they were for his own protection. [ 13 ] The Crown commented on the “stark horror” of these offences which would be “incomprehensible to most people”. The

Crown suggested there were no other recorded cases in Saskatchewan of a confinement of such a length of time and with such sadistic punishment inflicted. [ 14 ] I agree with the Crown’s characterization of these charges. The offences themselves are serious, the manner in which they were carried out was cruel and horrific. [ 15 ] The charges resulting from carrying the weapon and ammunition are also serious; they are gang related and in violation of an existing prohibition order.

They demonstrate that the accused had adopted a violent lifestyle that was potentially dangerous to others. [ 16 ] The accused accepts all of the circumstances as related by the Crown. Indeed, most of the facts related come from his own admissions to the police. Of particular interest, the accused, while on remand some two months after being arrested and before entering guilty pleas to these charges, sent a letter to his ex-common-law wife. The letter was adorned with a gang slogan “red til dead” and talks of these offences.

At that time, the accused had not renounced a gang lifestyle. [ 17 ] The Crown also presented the accused’s criminal record. It begins as a youth record in 2001 when the accused was 13 years old. He committed 26 offences under the Youth Criminal Justice Act , including one assault with a weapon. As an adult, he committed 18 offences, including two assaults, an assault with a weapon and assault causing bodily harm. In 2011, he was sentenced to three years in the penitentiary for possession of a restricted firearm with ammunition and given a mandatory prohibition against possessing a firearm.

While in the penitentiary, he was convicted of his last two assaults (in 2013). He is now 29 years old. At the time of these offences he had been out of jail and apparently out of trouble for almost three years. The Position of the Crown [ 18 ] The Crown reviewed a number of cases and advised that, in his opinion, the range of sentences available for the offences of confinement and aggravated assault was roughly between 10 and 14 years. The range of sentences for the firearm offences was 3 to 5 years given the accused’s record. [ 19 ] The Crown fairly outlined what he considered to be mitigating factors.

The guilty plea, at an early date, not only saved the victim from testifying and the justice system a lengthy trial, but also demonstrated remorse. His admission to police at the earliest opportunity also showed some remorse. In addition, Mr. Neapetung, as of April 13, 2017 when this matter was argued, had been on remand for 358 days. [ 20 ] The Crown also recognized the Gladue factors involved in this case, both in the general systemic sense and in the unique experiences of this accused.

While he suggested that it would be difficult to construct a restorative sentence, he acknowledged that a lesser degree of moral blameworthiness had to be recognized because of those Gladue factors. [ 21 ] As a result, the Crown suggested an appropriate sentence for the confinement and aggravated assault should be 8 years concurrent. He also suggested that, while the range of sentences for the firearm offences is 3 to 5 years, the principle of totality has to be considered and in light of that, he asked for 1 year consecutive for that offence.

Thus the Crown sought a total sentence of 9 years, less time spent on remand, which after applying a credit of 1.5 times, would be approximately 18 months. The Crown also asked for a DNA order and a lifetime firearms prohibition to attach to several of the charges. Position of the Offender [ 22 ] Mr. Neapetung recognized the harm he caused, and his lawyer suggested that the trauma and scarring the victim endured, is not dissimilar to that suffered by First Nations individuals as a result of colonialization.

Defence asked me to significantly reduce the moral blameworthiness of the accused, who is an indigenous person because of that colonial history. This is an application of what judges call Gladue factors.

[ 23 ] A review of the accused’s personal history as set out in the pre-sentence report (PSR) and psychological assessment reveals many instances where his life and upbringing were touched by the devastating victimization of our colonial past. Those reports go a long way toward explaining why this accused was able to commit such horrendous crimes. [ 24 ] The accused was raised in Regina. He never met his father but his step-father, Daryl Talbot, was his most prominent father figure. Daryl and the accused’s mother struggled with addictions and Mr. Neapetung spent his entire childhood in and out of foster care.

When he was at home, he was the oldest child and responsible for feeding his younger siblings, as his parents were usually “out” or “high”. [ 25 ] After age nine he spent more time in foster care and was in at least five different foster homes. When he was at home, his mother was physically abusive to him on a daily basis. He explained to his Probation Officer that his mother had a “shitty life and was dealing with a lot and she treated him the way that she was once treated. She had been at a residential school.” [ 26 ] At age 13, Mr. Neapetung ran from his foster home and began to commit crimes.

He just “stopped caring” and by the time he was 16, he was a member of a street gang. He was in and out of jail, dealing and doing drugs. [ 27 ] In 2003, when he was 15, Mr. Neapetung was to be released from detention to the care of his step-father, Daryl Talbot, who was no longer in a relationship with his mother. Just prior to Mr. Neapetung’s release, Daryl was murdered by Mr. Neapetung’s mother and her new boyfriend. The boyfriend got life in prison. His mother served approximately 4 years in prison. The accused attended grief counselling for one year after this happened.

This coincided with him becoming a gang member. [ 28 ] Mr. Neapetung moved to Saskatoon at age 21 and joined the Indian Posse. His life centred around partying, drugs and alcohol and committing crimes. [ 29 ] Eventually, Mr. Neapetung met his girlfriend, Leanne Vandale. They have been together several years and have a daughter of their own, as well as Leanne’s son and daughter. [ 30 ] After serving federal time in 2013, by all reports, the accused remained sober, found employment and lived about three years in a “normal” life. He worked seasonally in construction for the same company for two years.

All this fell apart in January 2016 when his mother passed away. She had been on life support in Edmonton, where Kyle was called upon to make the decision to end her life. His way of dealing with his grief was to return to his gang life, daily using crystal meth and hanging out with his gang peers. [ 31 ] The factors which are unique to Mr.

Neapetung that I identify as Gladue factors are: 1) he was left to raise himself and look after his younger siblings because his mother was incapable of looking after her children; 2) he suffered physical abuse from his mother who was a residential school survivor and was unable to parent any other way; 3) he had no consistent or stable role models from an early age; 4) he was unable to improve himself not having consistent educational opportunities or stable role models; 5) he did not know his father;

6) at age 13 he stopped caring and started to run from foster homes and commit crimes; 7) he joined a street gang at age 16; 8) his only role model, who was his step-father, was killed by his mother and her boyfriend; 9) he served federal time as a result of gang activity and was able to come out of jail and lead a “normal life” as a family man with a job until he had to deal with the untimely death of his mother; and 10) because he was ill equipped to deal with his grief, he left that family life to go back to the gang life and drugs. [ 32 ] Mr.

Neapetung’s life was doomed from the start and this is directly related to his family’s experiences as indigenous people living in Canada. It should be noted that the PSR rates him as a high risk to commit further crimes. On the other hand, I am aware that the generalized factors that make him a high risk now are; no employment, criminal peers and companions, drug and alcohol use and attitude, were all managed by him on his own in the three years after his release from the penitentiary, until his mother died in January 2016, when his “normal” life ended. This shows Mr.

Neapetung is not a lost cause, he is capable of reform. [ 33 ] The psychological test report identifies a number of characteristics that require psychiatric evaluation and pharmacological management. The report indicates “he is an individual who is anxious and struggling with poor anger control and impulsive acting out behaviour”. [ 34 ] The report makes several recommendations, all of which would assist Mr. Neapetung in leading a “normal” life.

Besides dealing with his anxiety and anger issues, the report recommends treatment to learn skills to deal with issues in his life, including long- term psychotherapy to assist him in, understanding and controlling his cyclical behaviour. [ 35 ] The defence also points to the mitigating circumstances of his early admissions to the police, the early guilty plea and the remorse shown by the accused. [ 36 ] Defence counsel emphasized the Gladue factors and reminded the Court that “each of us is more than the worst things that we have ever done”.

Defence pointed out that Kyle Neapetung has done better in his life and wants to change so that he will continue to do better. [ 37 ] The accused himself emphasized this as well. He indicated after his federal sentence “I did want to change. I was a good father, I know how to learn from my mistakes”. [ 38 ] The defence suggested 6 years or maybe 7 years as a sentence that recognizes Mr. Neapetung’s unique circumstances, the systemic Gladue factors and his reduced level of moral blameworthiness for the crimes of confinement and aggravated assault.

Defence suggested that 1 year consecutive for the firearm offences is a fair way to deal with the issue of totality so she asked therefore for a sentence of 7 years less remand credit, as calculated by the Crown. Sentencing Principles [ 39 ]

Section 718.1 sets out the fundamental principal of sentencing - that of proportionality. That is, the sentence must be

proportionate to the gravity of the offence and the degree of responsibility of the offender. [ 40 ] Many factors define the gravity of the offence. These include the seriousness of the offence at law, the harm caused and the viciousness involved. Moral blameworthiness includes concepts such as the accused’s role in the offence, his personal circumstances and abilities. I would also include in the moral blameworthiness of the offence the motive for the crime, in this case, gang-related revenge on an innocent person. [ 41 ] Other sentencing principles also apply.

The principle of parity means that like offenders, who commit like offences should be treated similarly. That is why the lawyers search for similar cases to assist the judge and provide for guidance in determining the range of sentences available. [ 42 ] Where consecutive sentences are given, the combined sentences should not be unduly long or harsh - this is the principle of totality.

Similarly, where serious offences occur, the judge has to look at deterrence, denunciation and the separation of the accused from the rest of society as important considerations. [ 43 ] In assessing moral blameworthiness when sentencing an Indigenous offender what the lawyers describe as Gladue factors are important.

Section 718.2(

e) requires, in these cases, that all available sanctions, other than imprisonment, that are reasonable in the circumstances and consistent with the harm done to the victims or the community should be considered for all offenders, with particular attention to the circumstances of Aboriginal offenders. [ 44 ] In R v Gladue [1] and R v Ipeelee [2] , as interpreted by our Court of Appeal, in cases such as Chanalquay [3] and R v Slippery [4] , and R v Delorme [5] [ Delorme ], suggest that the sentencing judge must closely examine the nature of the Gladue factors and the specifics of the crime in issue .

As stated in Delorme at para 59 : A sentencing judge should then consider the extent to which the unique circumstances of the Aboriginal offender bear on his or her moral culpability in the specific context of the case at hand. The search is not for a cause-and-effect relationship, but for features that “cast light on the degree of the offender’s blameworthiness for the specific offence in issue.” However, a sentencing judge should not simply muster all of the Gladue -type considerations at play and automatically conclude these have had a substantial limiting effect on the offender’s culpability.

The required analysis is more demanding: Chanalquay at para 52 . [ 45 ] As the learned Court of Appeal judge went on to explain at para 63: . . . forbearance underlies the restraint principle in 718.2(e), the rationale being that many Aboriginal offenders have come from situations of neglect, deprivation and hardship with minimal opportunity for positive development. These deprived circumstances might reasonably diminish their moral culpability. [ 46 ] The Gladue principles also apply where, as in this case, incarceration is necessary.

Those factors do not lead to an automatic reduction in sentence simply because the offender is Aboriginal. However, if there is no alternative to incarceration in the circumstances that prevail, the length of the jail term imposed on the offender must be carefully considered. [ Delorme , para 68] [ 47 ] What may be considered, over and above the general experience of all Aboriginal offenders, are the unique and special circumstances of this Aboriginal offender. In this case, the link between this accused’s life experiences and his offending behaviour is more than casual and, if not directly causal, is apparent.

Gladue factors directly relate to his committing these crimes. [ 48 ] In my experience, almost every time we see cases of horrific crime involving Aboriginal offenders, they are the actions of damaged individuals who were damaged as children due to neglect, poverty and deprivation, coupled with minimal opportunity for positive, socially-acceptable role models and education. In most cases, these can be traced back to the individual’s own experience, or parents or loved ones in residential schools.

[ 49 ] I have listed the life experiences of this accused previously in this judgment. These are Gladue factors and assist us in explaining and understanding his horrific and violent behaviour in this case. Moral culpability is not abated but it is diminished by those factors and will result in a less lengthy jail sentence. [ 50 ] According to the Criminal Code , Mr. Neapetung charge of unlawful confinement may result in a maximum sentence of 10 years.

The charge of aggravated assault may result in a maximum sentence of 14 years. [ 51 ] The suggestion of the Crown, that a range of sentences of 10 to 14 years should be applied, would place that range at the very top of the sentences available for those offences. That would be unusual as the maximum sentence is usually reserved for only the most egregious cases.

My review of the case law, admittedly very restricted because of the lack of similar cases, places the range of sentences available for the confinement and assault offences between 3 to 12 years. [ 52 ] The confinement was not planned but continued, once begun, over several days. It was degrading and motivated by retribution. The aggravated assault was painfully violent and disfiguring. It was indeed horrific. In proposing the sentence of eight years, the Crown indicated he had taken into consideration mitigating factors, including the Gladue factors available in this case.

However, he proposed a range a little higher than I believe it is, I think because the cases he referred to were generally ones of kidnapping and assault, not confinement and assault. [ 53 ] The gun and ammunition charges are also treated as serious offences in the Criminal Code , with maximum sentence ranging from 2 years and 10 years. A wide variety of sentences have been recorded in the case law, though many turned out to be penitentiary terms.

Both the Crown and the defence agree that if I were to make the sentences on these charges concurrent with each other, they ought to be consecutive to any sentences on the confinement and assault and, if they are, the principle of totality applies. They both recommend that these charges should add 1 year to the total sentence, and I agree. [ 54 ] In this case, I think the appropriate sentences for the confinement and the aggravated assault are 7 years, each concurrent.

Such a sentence implies that the seriousness of the offences require that the sentence should be 9 or 10 years, but that the mitigating factors, in particular the Gladue factors, reduce that sentence to 7 years. I agree that the firearm charges should be 1 year concurrent with each other but consecutive to the other sentences imposed today. Therefore the appropriate sentence globally is 8 years. [ 55 ] The accused has been on remand for 381 days as of today’s date.

He is entitled to a credit of 572 days or 19 months. [ 56 ] His sentence therefore will be as follows: Aggravated assault 7 years Confinement 7 years, concurrent Time under each of the remaining charges 1 year consecutive to the sentence above but concurrent with each other. This results in a total sentence of 8 years less 19 months - for a net of 6 years and 5 months remaining to be served. Thus, the committal should say that sentences on the confinement and assault charges is 5 years 5 months concurrent.

Sentences on the other charges are 1 year each, concurrent but consecutive to the confinement and assault, for a total sentence of 6 years 5 months.

[57] There is a victim surcharge of $200.00 on each offence to be paid within 1 year of Mr. Neapetung’s release from custody.

Ialso make an order that he supply a sample of his DNA to the authorities at their convenience and he shall be subject to a lifetimefirearms, ammunition and explosives ban pursuant to s. 109 on the charge of aggravated assault and the firearms charges in ss. 117.01(1),88 and 96(2)(a). [58] Lastly, I ask that the PSR and Psychological Assessment be made available to the appropriate authorities at CorrectionalService Canada so that programming can be developed as recommended by the psychologist. _____________________ B.M.

Singer, J [1] (SCC), [1999] 1 SCR 688 [2] 2012 SCC 13, [2012] 1 SCR 433 [3] 2015 SKCA 141 [4] 2015 SKCA 149 [5] 2017 SKCA 3