R. v. K.T.W. Date:, 2012 BCPC 52

Citation: R. v. K.T.W. Date: 20120224 2012 BCPC 0052 File No: 5056-3-C Registry: North Vancouver IN THE PROVINCIAL COURT OF BRITISH COLUMBIA REGINA v. K.T.W. REASONS FOR JUDGMENT OF THE HONOURABLE JUDGE C. BAIRD ELLAN Counsel for the Crown: Nicole Gregoire Counsel for the Defendant: Dale. A. Strebchuk Place of Hearing: North Vancouver, B.C. Date of Hearing: February 8, 2012 Date of Judgment: February 24, 2012 [ 1 ] The young person, K.T.W., now aged 16, is before me for sentencing on the offence of assault causing bodily harm of two adult individuals, R.A.H. and J.W., on August 14, 2010.

The single charge involves the use of a knife against two individuals during an altercation, causing significant wounds in each case. [ 2 ] Counsel have presented a joint submission for a six month deferred custody and supervision order. At first glance, such a sentence may seem to be a lenient one in light of the nature of the injuries. It is therefore important to understand the legal and factual context in which counsel have come to make this submission and I have come to accept it. I will start with the legal context.

Relevant Provisions of the Youth Criminal Justice Act [ 3 ] I will not set out the entirety of the provisions of the Act here.

I will just observe that the Declaration of Principle in the Act and the sentencing provisions for young persons, children, emphasize crime prevention through addressing underlying circumstances, rehabilitation, reintegration into society, meaningful consequences, promotion of the long-term protection of the public, fair and proportionate accountability, reinforcement of respect for societal values, reparation, and recognition of the young person’s level of maturity and dependency. [ 4 ] What the Act does not do is prescribe sentences that denounce crime or deter the young person or others.

Those are adult concepts that do not apply in the youth sphere. If there were a simple way to describe the differences in focus of the two regimes, it would probably be that the aim of the youth system is more corrective than punitive, recognizing the greater responsibility that society has for ensuring that a young person is not criminalized, in the long term. [ 5 ] The adult sentiment that a sentence should (simply) be appropriately punitive, for a child, must be replaced with a measured emphasis on meaningful consequences and accountability, along with rehabilitation.

Proportionality also has a different meaning than it does for an adult offender, given the child’s dependency. [ 6 ] Custody, for an adult, means imprisonment. For a child, it means removal from his home and his parents, his situation of

dependency, and isolation in a custodial setting. One has only to recall the devastating effects of the residential school systems torecognize that isolation from family support is not a constructive experience for a child, and is far less likely to promote responsiblebehavior in the long term. [7] While the adult sentencing regime includes the principle that custody is a last resort, the youth scheme only permits custodialsentences in certain very narrow circumstances.

A child without a record who commits a violent offence is eligible for a sentence ofcustody (Section 39(1)(a)), but the Court is still required to consider all available sanctions other than custody, and to impose the leastrestrictive sanctions, those most likely to rehabilitate and reintegrate the young person, as well as to hold him accountable for his actions:Sections 38(2)(

d) and (e). [8] In connection with the purpose of the YCJA sentencing regime, Barclay J. of the SKQB made the following observation in R. v.Turcotte, 2008 SKQB 478: 8. Section 3(1)(

b) of the YCJA recognizes a clear intention of Parliament and a primary objective of the YCJA to create a distinct youthjustice regime separate from that used for adults. This separate regime is founded on the notion that younger individuals, because of theirage, have heightened vulnerability, less maturity and a reduced capacity for moral judgment which entitles them to a presumption ofdiminished moral blameworthiness or culpability: R. v. D.B., [2008] 2 S.C.R. 3, 2008 SCC 25 at para. 41.

Joint Submission [9] Where experienced counsel present a joint submission regarding the sentence that they view as appropriate, the Court is requiredto pay considerable deference to that submission, and, essentially, not to reject it unless it is clearly outside the range of available orappropriate sentences: R. v. Wickstrom, 2011 BCSC 745 . [10] The sentence proposed by counsel here recognizes the different sentencing principles under the YCJA while providing ameasured and appropriate response to the crime.

Similar Sentences [11] The sentence proposed in this case is consistent with sentences imposed for similar offences for first time offenders. Thefollowing cases serve as examples of aggravated assault or assault causing bodily harm, some with a knife, where the young offender hasreceived a non-custodial sentence: R. v. M.E., 2008 ONCJ 99 , [2008] O.J. No. 919; R. v. D.W., 2011 NLCA 21 ,[2011] N.J. No. 75; R. v. K.S., 2009 NLCA 46 , [2009] N.J. No. 347; R. v. R.C.W.M., [2004] B.C.J. No. 201; R. v. L.P., [2012]B.C.J. No. 59; R. v. D.P., 2006 BCCA 409 , [2006] B.C.J. No. 2113; R. v. S.S.T., [2006] B.C.J.

No. 2110; R. v. S.B., 2009ONCJ 22 [12] Many of the cases involving stab wounds are manslaughter cases. In some of those, even with a designation as a serious violentoffence, a court has nonetheless seen fit to impose a non-custodial sentence, for a first offender. Early Guilty Plea [13] The offence is dated, for a youth matter.

This is explained by the fact that there were issues assembling the disclosure packagebecause of a significant number of witnesses, and the fact that the Crown wanted to await the outcome of the injuries and obtain medicalreports. [14] The young person nonetheless confirmed through counsel that the matter would be for disposition in September 2011, which Iam told was about as early as that could have occurred after counsel had an opportunity to discuss the case.

The young person isaccordingly entitled to credit for an early guilty plea as a mitigating factor. [15] I am told that one of the Crown witnesses has moved to the U.K., and I conclude that the guilty plea has spared the state theexpense of perhaps bringing that person back for a trial. The Significance of a Sentence of Deferred Custody and Supervision [16] The sentence proposed is not a jail sentence, but it is the next most severe option under the Act. It requires that the Court findthat the young person is eligible for custody, under

section 39. Our Court of Appeal has referred to a deferred custody order as a custodyorder, presumably in light of the significant restrictions and consequences attached to such orders: R. v. R.C.W.M., supra. [17] Such an order therefore specifically applies to violent offenders without prior convictions, among others. It does not apply if theCrown has sought a determination that the violent offence is a “serious violent offence”.

The Crown has not done that in this case, andspecifically urges the Court to impose a deferred custody and supervision order. [18] The Crown says that it has considered all the relevant factors, and that although a DCSO is not a custodial sentence, it provides asignificant restriction on the behavior of the young person, and there are immediate consequences if he breaches its terms, in the form ofarrest and potential imprisonment for all or part of the balance of the sentence. [19] K.’s counsel submits that a designation as a violent offender, and a custodial sentence, would serve little or no benefit to thesocietal interest or the young person’s long term integration into the community. [20] Prior case law has specifically held that the provisions precluding deferred custody and supervision orders from application toserious violent offences do not create a presumption that jail is required for such offences.

In cases where the determination has been

made, courts have on occasion imposed probation orders for serious violent first offenders. The position taken by the Crown in this case permits the Court to consider an appropriately restrictive sanction without being faced with the “stark” options of jail or probation. [ 21 ] The proper

interpretation of the Act and the case law is that the legislators did not provide for mandatory or presumptive custodial sentences in cases of serious violence. The presumption against custody continues to operate with or without the offence being characterized as a serious violent offence, for all the reasons set out in the Act’s provisions, and for the simple reason that the person before the Court is a child. Factual Context [ 22 ] I will turn to the facts underlying the guilty plea that K. has entered.

As I have said, this case involves the use of a knife to cause serious injury to two individuals during an altercation. It is important to understand the context in which young K.W. came to use that knife, on the early morning of August 14, 2010. [ 23 ] K. was 15 at the time of the offence. He had traveled with his older brother J., who is, or was, 23, to Whistler, to watch a mountain biking event.

K. brought a friend similar in age to himself, and it appears they were out, unsupervised, at 2:00 a.m., on the offence date. [ 24 ] When K. was in Grade 8, and either 13 or 14, he was himself the victim of a robbery, while away on a trip with friends to Edmonton. He and his friends were reportedly “jacked” by a group of eight youths with knives. He found the incident traumatic and he became anxious as a result of it. He started carrying weapons for protection, first a can of mace, and a baton. Those were confiscated from him by police when he was in Grade 9.

At some point thereafter he took to carrying a knife. [ 25 ] K. is smaller in stature than others his age, and the materials filed support a conclusion that he has been something of an “easy mark” or a target, or at least, that he perceives himself in that way. [ 26 ] On the offence date, which would then have been between K.’s Grade 9 and 10 school years, the complainant J.W. and four of his friends encountered K. and his friend outside the Whistler Village 7-11. Both groups were intoxicated. J.W.’s group was all adults.

As that group passed by K. and his friend, someone from the group commented, “You don’t want to mess with guys like these.” [ 27 ] K. and his friend were dressed in what is described as Ed Hardy style clothing. The remark was probably innocuous, or at worst a gentle ribbing. However, perhaps in part due to his intoxicated state, K. seems to have taken it as a challenge.

He and his friend initially passed by, but returned a few minutes later, and K. issued his own challenge to the effect of, “The only way you are going to beat me is if you have a weapon.” He then pulled a folding knife from his pants pocket, and held it in an open position. [ 28 ] The male he was confronting, who was not J.W., said he did not want to fight. K., or his friend, knocked a cigar from behind the ear of one of J.W.’s group. K. threw the cigar away, in an apparent effort to provoke, but the group did not respond. [ 29 ] However, K.’s friend then got into a struggle with one member of J.W.’s group.

J.W.’s friend soon got the upper hand. At that point J.W. perceived that K., still with the knife, was moving toward the struggle between the other two, and feared that K. was going to try to stab his friend. [ 30 ] J.W. placed K. in a headlock, and tried to subdue him. While in the headlock, K. reached out with the knife and cut J.W. under his left arm pit. J.W. retreated, but as he did so, K. slashed out again, and cut him on the hamstring. [ 31 ] Two of J.W.’s friends chased and tackled K., who was still holding the knife, and took him to the ground.

While these two were trying to pry the knife away, J.W. kicked him or stomped him in the head three or four times. [ 32 ] The complainant R.A.H. was having pizza with his girlfriend in a nearby establishment, and saw the second part of the incident, when K. was down, being kicked by J.W. and surrounded by three or four adult males. He said to his girlfriend that he was going to go and help as the small guy was getting stomped.

His girlfriend warned him, saying something like, “Don’t go, you are crazy, you will get hurt,” but R.A.H. said he didn’t want to read in the papers the next morning that the kid was dead or in a coma. [ 33 ] R.A.H. ran over and pulled or pushed a couple of the adults off K. They tried to tell him that it was they who had been attacked. They started to retreat, but as K. got up, he cut R.A.H. in the chest, mistaking him for one of his assailants. [ 34 ] K. ran from the scene and eventually into a stranger’s apartment nearby, covered in blood. They helped him wash off.

He told them that he and his friend were jumped, and that he “shanked” a couple of guys. [ 35 ] The apartment resident described K. as very drunk. He had cuts on his face and head and was missing his shoes. He asked the apartment residents to lock their windows and doors, and said he had been jumped by five guys and chased for half an hour. [ 36 ] The Police arrived and arrested K. for assault with a weapon. K. asked, “What weapon?” When they told him it was a knife, he said, “Oh, my God, I cannot believe I stabbed someone. It was self defence.” He later vomited in cells. [ 37 ] K. gave a statement to the police.

He said he had gotten into an argument about something that was said, that this had never happened to him before, and that it was self defence. He admitted he carried the knife for protection. He was released to his brother J. [ 38 ] K.’s description of the incident has remained consistent that he perceived that the group of adults had confronted and challenged him and his friend. He reported in one of his interviews that he had suggested to J.W. that they each go their separate ways but J.W. had said his friend was too “pissed off.” K. believed that he had used the knife in self defence. Victim Impact

[ 39 ] Both victims were airlifted from Whistler to a Vancouver hospital. R.A.H., a man in his mid-20’s, suffered a puncture wound to his chest, not far from his heart, which caused a collapsed lung. He required surgery and was in hospital for three days. [ 40 ] R.A.H. provided a victim impact statement in which he said he had to take four weeks off work. He now suffers from anxiety in groups.

The incident has completely changed his attitude toward intervening to assist a person in need, and his girlfriend confirms a dramatic change in his personality including daily anxiety attacks, irritability and trouble concentrating. [ 41 ] He was unable to take a scheduled real estate exam. He ceased to play hockey and rugby, and as of the sentencing date was still not working to his full ability. Crown counsel spoke with him in January 2012, when he confirmed that he is still experiencing considerable effects from the offence.

He says he has lost 23 days of work, and $3,772 of income, and has had to pay for prescriptions totaling $78.41. [ 42 ] Although the youth worker arranged for a victim reconciliation conference between K. and the victim, J.W., R.A.H. was not ready for that when it occurred. He expressed the hope that a message would be sent that young people should not be carrying knives. [ 43 ] J.W.’s injury is described as a five inch slash on his right hamstring three inches deep, into the muscle. He also received a superficial stab wound to his left lateral chest.

The latter was described as a minor injury, while the hamstring wound was described as major. [ 44 ] J.W. did not provide a written victim impact statement but provided comments through the author of the pre-sentence report. He said he was aware that K. is repentant, and understands his actions, from his own experience as a youth. He says he has no hard feelings, and he forgives him. Personal Background [ 45 ] K. is now 16, born April 16, 1995. His parents grew up in the Hutterite community in Manitoba. His father J. says he has a strong relationship with his three sons. K. is the youngest.

His next older brother has addiction issues. [ 46 ] K.’s personal history is set out in three very helpful reports filed in the proceedings. He has had some challenges in school and social interactions, and some police involvement, but has not been charged with any prior criminal offences. [ 47 ] At the time of the offence, K. was struggling with some family issues. His aunt was diagnosed with cancer and has subsequently succumbed to it.

His father was struggling with a large unpaid client debt in the family business, which was also affected by the downturn in the economy. [ 48 ] K. and his older brother work in the family business. K. is said to have an aptitude for the manual side of the business. [ 49 ] On his behalf, K.’s counsel says that from his formative years, K. has felt preyed upon, which counsel described as somewhat of a “small dog syndrome”. Apparently people want to attack him, or he perceives that. [ 50 ] After the robbery in Edmonton, K. took to carrying a knife for protection.

His mother apparently knew of this but was not able to dissuade him. The experience of being robbed affected him significantly, and he was experiencing some frustrations with school at the same time. He started drinking frequently, or more frequently than he had before. He has nonetheless had good family support. [ 51 ] K. is attending grade 11. In school K. performs relatively well and is described as responsible and accepting of mistakes. He is taking a work program, which will provide credit for his work at the family business. His father speaks well of his performance.

He intends to carry on in the family business when his father eases up. He gets along well with the brother that manages the business. [ 52 ] K. expects to finish high school this year but will attend his graduation ceremony and festivities next year with his classmates. In the interim he will work with his father. He intends to move out of Abbotsford, to get away from his past, to work, gain independence and try to enjoy life.

He has the opportunity to work all over the Fraser Valley. [ 53 ] It is said that this incident has been a learning experience for K. about the potential effects of weapons, or maybe the mixture of weapons and alcohol consumption. According to his mother, he is not carrying weapons any more, and drinking only occasionally, in a controlled fashion. [ 54 ] His counsel says K. has curbed his scrapping activities since the offence.

He was released without supervision on police bail, and has had no breaches nor has he been charged with any subsequent offences. [ 55 ] According to his youth probation officer, K. has been largely compliant with his bail terms. [ 56 ] The only incidents since the offence have been two “self confessed” fights, described in the psychological report. Each involved some provocation, and neither involved the use of a weapon. Psychological report [ 57 ] Lynda Murdoch, R.P. provided a thorough psychological assessment of K.

In relation to his learning from the incident, she expressed concern that he has not yet learned to walk away from confrontations. She pointed to a recent fight with an individual, in which K. had beaten him up for calling his brother an “oxy head”. She observed that two fights had occurred after this incident and recommended that K. participate in a violent offender treatment program. She expressed the opinion that he will need supervision in order to complete that. [ 58 ] Ms. Murdoch assessed K. as a personality type that offends easily. He is not able to just let things roll off. K. told her that he did

not believe that he needed counseling. His family and he took the position that the incident here was out of character. [ 59 ] Ms. Murdoch understandably takes issue with that and assesses K. as a moderate risk to reoffend. She opines that similar incidents are likely to give rise to similar reactions, given the events occurring after the offence. She accepts that K. has made some changes, but says he has not dealt with the problems that are at the root of his violent tendencies, which she says are in part personality traits.

She says he is only at the beginning in terms of gaining insight into both the effects of his actions and the hard work he will need to do to overcome his tendency to violence. Presentence Report [ 60 ] The presentence report sets out more about K.’s background. He has had a normal history with some learning challenges but no disability. He fell in with a bad crowd in high school, and started drinking and scrapping. [ 61 ] He started to use alcohol and drugs in Grade 8 with older friends, mainly alcohol, but he once tried cocaine. He tries to avoid drugs because of his older brother’s experience.

He fell into a pattern of very regular drinking, and coming home late. He described occasional black outs, and conceded that he was “pretty much” an alcoholic when the offence occurred. [ 62 ] K. says he drinks less now; however it must be observed that he is on a bail condition not to drink at all. As observed by Crown counsel he seems unconcerned about breaching that term, and, I would observe, apparently unaffected by the fact that this very serious matter came about when he was drunk.

I am also concerned that he does not seem to be getting enough family support, supervision and recognition of his challenges, in particular, in connection with his drinking and staying out late at night, carrying weapons, and tendency toward physical confrontation. Victim Offender Reconciliation Report [ 63 ] The Crown filed a Victim Offender Reconciliation Report. In it, the author stated that K. consistently described his actions as self defence. He admitted that he should not have carried the knife. [ 64 ] He was reluctant initially to apologize in person but agreed to write letters.

The letters he wrote are included in the materials and are candid and genuine expressions of remorse and insight into the effects of his actions. [ 65 ] His letter to J.W. prompted J.W., who was also initially reticent, to write a written response and later to agree to a meeting, which in turn convinced K. to do so. [ 66 ] The author of the report, Ms. Wesenberg, described K. as consistently showing remorse for his actions in relation to Mr. H.

He indicated an intention to follow through with full payment of compensation, which he feels is the “least he can do.” [ 67 ] K. did ultimately meet with J.W. for a restorative justice conference. Ms. Wesenberg recommended that there be further efforts at an in person reconciliation conference with Mr. H. Attitude toward the Offence [ 68 ] As has already been observed, K. has written genuine letters of apology to both victims and expressed sincere remorse for his actions.

He has also consistently expressed remorse to all of the people who have interviewed him in connection with the offences. [ 69 ] In particular, as his counsel has put it, he regrets very much that he harmed a good Samaritan. He accepts that it was reasonably foreseeable that something like that could occur, but it was not his intent to harm R.A.H. He expressed this in his letter. Had he recognized that he was there to help, he clearly would not have acted as he did. [ 70 ] K. is open to alcohol therapy and whatever else the Court may impose, and will accept directions for further victim reconciliation.

He has a limited income given that he is a high school student, but has offered to make financial restitution to Mr. H. [ 71 ] He is said to realize that what he did was wrong, that he went down the wrong path. He is trying to get away from the lifestyle he was in and to leave behind negative peer groups. Analysis [ 72 ] Although concerns have been expressed in the materials and before me about K.’s reported altercations since the offence date, I am of the view that they do not detract from the sentence proposed by counsel. Firstly, the most serious of those is entirely self-reported.

Secondly, none resulted in police intervention or charges. [ 73 ] Thirdly, I do not have the facts of those incidents before me and I am not sentencing on them. Fourthly, as related in the materials, those incidents are consistent with the assessment of K.’s personality and emotional challenges, and also with his assertion that he is trying, in his own way, to deal with his tendency to react in a violent fashion.

Clearly he has a lot more work to do, and still poses a risk of inappropriate reaction, but that does not in my view detract from the conclusion that a jail sentence is not required here. [ 74 ] In my view, a DCSO, followed by a supervision order, will assist in providing a structure within which K. may achieve the necessary rehabilitation to reduce and hopefully eliminate the risk he poses.

The term of a DCSO is limited by the YCJA to just six months and it is my view that his period of supervision must be extended beyond that period by way of an 18 month probation order in light of the amount of work he needs to do. The DCSO and probation order will bear the terms recommended in the various reports. K. will be required to make restitution within two years, and to participate further in the reconciliation process. There will also be a two

year firearms prohibition and an order for a DNA sample. ________________________________ The Honourable Judge C. Baird Ellan Provincial Court of British Columbia