R. v. J.M., 2013 MBPC 38

CITATION: R. v. J.M. , 2013 MBPC 38 Date: 20130626 IN THE PROVINCIAL COURT OF MANITOBA BETWEEN Her Majesty the Queen ) Michael Makar, ) for the Crown ) and ) ) ) J.M. ) Jeremy Kostiuk, Accused ) for the Accused ) ) ) Reasons for Decision delivered ) June 26, 2013 ) Restriction on Publication: Please note that the Youth Criminal Justice Act, s. 110(1), which prohibits the publication of any information that may identify the young person as having been dealt with under this Act , applies to this judgment. Devine P.J.

Introduction [ 1 ] The Crown has made an application under section 64(1) of the Youth Criminal Justice Act to have J.M. sentenced as an adult on a robbery with weapon offence to which he pleaded guilty. The Crown’s application fails for the reasons that follow. The Facts [ 2 ] J.M. was 17 years old on August 29, 2012 when he committed a robbery against 53 year old William Hamilton. Hamilton was in a hotel room at the Quest Inn at 367 Ellice Avenue in Winnipeg. J.M. entered the room around 2:00 in the morning. The two apparently knew each other.

Hamilton was giving the youth alcohol and pills and then sexually groped J.M. The youth then slashed at Hamilton with an Exacto-type knife, cutting him three times on the arm and once on the chest, leaving a six-inch laceration to his chest and shoulder that required medical attention. The young person grabbed Hamilton’s San Jose Sharks jacket, $80 in cash and his watch. Hamilton suffered from MS and used a wheelchair to get around. He had to get from the bed to the wheelchair and down to the lobby of the hotel to summon help.

Minutes later, the police found J.M. wearing the San Jose Sharks jacket and the watch, sitting on a bench in Central Park, located one minute away from the scene of the crime. He was intoxicated. He gave a full confession to the police, telling them that Hamilton had groped him. [ 3 ] J.M. has an I.Q. of 48, has been diagnosed with depression and anxiety, has a speech impediment and functions at a Grade 1 or 2 level in reading and math.

He is from an Aboriginal family who experienced displacement from God’s River and moved to a part of Winnipeg fraught with many of the same problems from which the family tried to escape: drugs, alcohol and high crime. [ 4 ] He pleaded guilty to the robbery on January 2, 2013. At that time the Crown advised it would be making an application to have him sentenced as an adult. [ 5 ] He has been in custody since August 29, 2012

The Law [ 6 ] The basis of the Youth Criminal Justice Act ( YCJA ) is that people under the age of 18 are less morally blameworthy and responsible than adults for their criminal conduct. It is a fundamental principle of our legal system. That is why there is a separate system in place for young people. [ 7 ] In exceptional cases, where an offence is serious, the person under the age of eighteen has the moral culpability of an adult, and the sentencing principles in the YCJA would constrain the court to impose a sentence of in sufficient length, an adult sentence can be imposed.

The onus is on the Crown to rebut the presumption of diminished moral blameworthiness. [ 8 ] Section 72(1) of the YCJA provides as follows: 72.

(1) In making its decision on an application heard in accordance with

section 71, the youth justice court shall consider the seriousness and circumstances of the offence, and the age, maturity, character, background and previous record of the young person and any other factors that the court considers relevant, and (

a) if it is of the opinion that a youth sentence imposed in accordance with the purpose and principles set out in subparagraph 3(1)( b )(ii) and

section 38 would have sufficient length to hold the young person accountable for his or her offending behaviour, it shall order that the young person is not liable to an adult sentence and that a youth sentence must be imposed; and (

b) if it is of the opinion that a youth sentence imposed in accordance with the purpose and principles set out in subparagraph 3(1)( b )(ii) and

section 38 would not have sufficient length to hold the young person accountable for his or her offending behaviour, it shall order that an adult sentence be imposed.

(2) The onus of satisfying the youth justice court as to the matters referred to in subsection (1) is with the applicant. Analysis The Offence and the Youth [ 9 ] The offence was violent and it was committed against a man in a wheelchair. But, the victim had sexually groped J.M., an immature teenager. The attack and the theft constituting the robbery were not planned. They were retaliatory and fuelled by alcohol. And J.M. made little effort to hide his crime. He was found drunk on a park bench one minute away from his crime, wearing the jacket and the watch.

He fully confessed to police, telling them that Hamilton had groped him. [ 10 ] J.M. was 17 at the time of the offence, but with an I.Q. of 48, putting him in the category of Moderately Mentally Retarded, according to Dr. Fisher who conducted the forensic assessment for the purpose of this application. The forensic report states that J.M.’s cognitive limitations prevent him from being able to reflect sufficiently to experience empathy and remorse. They are also a significant contributing factor in poor behaviour control and not easily learning from his experiences or consequences.

As his cognitive delays are not expected to change appreciably, J.M. will require a high degree of adult supervision, monitoring and structure “across time” states the forensic report. [ 11 ] His reading and math skills are at the Grade 1 to 2 level. [ 12 ] J.M. is not mature. He will quite possibly never be mature, because of his cognitive deficiencies. His lawyer characterized him as disabled and suggested that J.M. will never have the blameworthiness of an adult.

The presentence report indicates that he is “morally immature and is not able to connect his decision with consequences for himself or other(s).......” The presentence report also indicates that he wants to comply with his court orders, go to school and he places importance on school, church and family, but he gets distracted from his goals and does not follow through with his commitments. [ 13 ] He is, however, respectful and cooperative with Probation Services.

He has taken responsibility for this offence and his offending behaviour in the past. [ 14 ] J.M. comes from the Manto Sipi Cree Nation (God’s River First Nation). It is a small community of under 600 people, located 585 air kilometres northeast of Winnipeg. Only some of the houses have running water and sewage. Other homes use water tanks for water supply and use outhouses for waste. These houses use wood burning or fuel stoves for heat. [ 15 ] J.M.’s parents separated when he was three years old.

His mother relocated the children several times to several addresses in Thompson, Edmonton, Winnipeg and back to God’s River. God’s River suffers from violence, substance abuse and gang activity, all of which J.M.’s mother said were influencing her family negatively, such that she relocated them to Winnipeg in 2009. At the time, J.M. was being bullied by older boys in God’s River. Both J.M.’s maternal grandparents went to residential school.

Although J.M. has a positive, supportive and loving mother and other positive influences in his extended family, there have been issues with alcohol and violence in the home, as well as suicidality and depression in the family after the loss of a relative, shortly before J.M. committed this robbery. [ 16 ] J.M. started using drugs and alcohol when he was 13 or 14 years old. [ 17 ] J.M. has a youth record which demonstrates unsuccessful attempts to assist him in the community.

On March 25, 2009, he received a 12-month probation order for mischief under $5000 and possession of a weapon dangerous to the public peace. On March 31, 2009 he received a further one-year probation order for failure to comply with a condition of his recognizance, arising from God’s River. The probation orders expired March 24 and 29, 2010. On September 14, 2009 he received 18 months probation for failure to comply with his sentence and failure to comply with an undertaking. He failed to return to school, substance abuse counselling and other programming.

He was arrested on further charges stemming from his non-compliance with probation and a mischief when Probation Services submitted a report in October of that year. He was unsuccessful in complying with ISSP following that, and charged with

failure to comply with his sentence. He received a sentence of four days open custody following by two days community supervision. After two releases in the spring of 2010 his whereabouts were unknown. He committed a robbery with a weapon, was unlawfully in adwelling house, operated a vehicle dangerously and fled police in an incident that occurred in April 2010. On January 25, 2011, he wassentenced to 30 months of probation.

He had two further failures to comply with disposition convictions on June 16, 2011 and March 7,2012 for which he received open custody and community supervision sentences. [18] He successfully completed the community supervision orders in 2011 and 2012. Can a Youth Sentence be of Sufficient Length to hold J.M. Accountable? [19] Justice Abella’s opening statement in the Supreme Court’s seminal decision in D.B. is that young people are “decidedly butdifferently accountable” for their crimes (R. v. D.B., 2008 SCC 25 at para. 1).

Section 3(1)(b)(ii) of the YCJA states that accountabilitythat is fair and proportionate must be emphasized, consistent with the greater dependency of young persons and their reduced level ofmaturity. [20] Accountability is achieved not only through the imposition of meaningful consequences, but also sanctions that promote theyoung person’s rehabilitation and reintegration into society. (R. v. A.O., 2007 CarswellOnt (C.A.) at para. 42) [21] Chief Justice Lamer explained that accountability is equivalent to the adult sentencing principle of retribution, in R. v.

C.A.M.(1996), (SCC), 105 C.C.C. (3d) 327 at para. 80. Thus, retributive sentences properly reflect:

i) the moral culpability of the offender, having regard to ii) the intentional risk-taking of the offender iii) the consequential harm caused by the offender iv) the normative character of the offender’s conduct [22] One of the trademark indicators that a youth, rather than an adult, has committed a crime, is impulsivity, and lack of planning. In this case, J.M. was reacting to being sexually groped by a 53 year old man.

There is no indication that his intent when he first enteredHamilton’s room at the Quest Hotel was to rob him or steal from him. [23] This can be compared to cases where the crimes committed by young persons more closely resembled those of adults, in termsof the planning and purposefulness involved, the intentional risk-taking of the offenders, the harm caused and egregious violation ofnormative behaviour: • K.H. robbed people at gunpoint six times over a three-day period to gain entry into the Indian Posse gang. He went out on thestreets looking for adolescents and terrorized them at gunpoint.

All the robberies involved threatening the victims with their lives. Theyoccurred (except for one) in broad daylight. (R. v. K.H., 2013 MBPC 31) • D.V.J.S. committed murder. He and a co-accused 18 year old conducted reconnaissance of a pizza delivery business. They wentback to rob the Pizza Hotline disguised with toques and bandanas and armed with an axe and a knife. D.V.J.S. exhibited confidence,assurance and determination in entering the store, catching the cashier trying to escape, and going through his pockets. A pizza deliveryman returning to the store tried to intervene.

D.V.J.S. killed him, by striking him twice in the head with the axe. He then turned andtook the cash register. Later, he took videos on his cell phone, posing with the loot and talking about how cool it was to kill someone. He told the police, “He just laid there, and he’s not moving, so it’s time to turn around the get to the register.” (R. v. D.V.J.S., 2013MBPC 34) • J.J.T. shot and killed three people and injured three more after firing 19 shots into the kitchen of a Winnipeg home as part of anIndian Posse gang retaliation hit. There were 25 – 30 people in the house at the time for a party. (R. v.

J.J.T., 2010 MBQB 216) • O.A. was involved in 16 well-planned, violent and terrifying armed robberies of convenience stores. The offences involvedplanning, disguises, weapons and gratuitous violence. (R. v. O.A., 2007 CarswellOnt 1181 (C.A.)) • B.L. was the leader in a home invasion with two co-accused. They were armed with knives and invaded the home of a family withchildren in the middle of the night and robbed them. After being released on bail, he mugged an office worker in broad daylight whenshe was leaving work.

He first threatened and then punched her in the face to get the bag she was carrying, then struck her with thebottle of bubble bath she had in the bag, thinking it was liquor. (R. v. B.L., 2013 MBQB 89) [24] I must be satisfied that I can impose a long enough youth sentence to hold J.M. accountable.

To hold J.M. accountable, theyouth sentence must be long enough to reflect the seriousness of the offence, his role in it and also long enough to provide reasonableassurance of his rehabilitation so that he can be safely reintegrated into society. [25] I am satisfied that a youth sentence can do that in this case. [26] Robbery with weapon pursuant to s. 343(

d) of the Criminal Code is liable to a maximum sentence of life imprisonment,pursuant to s. 344(1)(

b) of the Criminal Code. There is no minimum punishment for the type of robbery committed by J.M. Thecombined effect of s. 42(14) and 42(2)(

n) of the Youth Criminal Justice Act is that the maximum youth custody and supervision order forJ.M. is three years, with two of those years being served in custody and the last year under supervision in the community. [27] The Crown says an adult would get a sentence of five to six years for this offence. That does not take into account the impactof sexual groping by an older male upon a teenager. The defence suggested the sentence for a mature adult with a related might net asmuch as five years.

[ 28 ] I can impose a sentence of up to three years of custody and supervision to be followed by a period of probation of up to two years. J.M. has already been in custody nearly one year. J.M. has never had the benefit of a sentence in secure custody or of any duration. The longest custodial sentenced that he has had was 30 days of open custody, at the conclusion of which he was released back into the same circumstances in the community. [ 29 ] Thus, a youth sentence can be long enough to reflect the seriousness of the offence and J.M.’s role in it.

At the same time, the youth sentence can provide a reasonable prospect of rehabilitation so that he can be safely released to the community. The prospects for rehabilitation are much better than they were because the circumstances have changed. First, the sentence can be long enough to accomplish rehabilitative goals and secondly, there will be 24-hour supervision in the community upon J.M.’s release. [ 30 ] J.M. has been accepted by Community Living Disability Services (CLDS).

He has been assessed as a youth requiring 24-hour supervision, as he does not have the capacity to make appropriate and pro-social decisions without guidance. He plans to move into a group home or foster residence upon release, which would allow for this level of supervision and guidance. [ 31 ] While in custody at youth facilities, he will be able to continue to go to school and upgrade his mathematics and reading and work on his speech impediment with a speech pathologist. These opportunities will not exist if he is sentenced to an adult facility.

He will also be able to participate in the EQUIP program, which is specifically designed to work with residents like him. He may need individualized attention, given his difficulty in working in groups. [ 32 ] After considering the nature of this offence and offender I am satisfied that a youth sentence would have sufficient length to hold J.M. accountable for his offending behaviour. Conclusion [ 33 ] The Crown’s application to have an adult sentence imposed for the offence of robbery with a weapon is denied. A youth sentence will be imposed. Original signed by Judge C. A. Devine P.J.