R. v. D.(K.), 2011 ONCJ 81

WARNING The court hearing this matter directs that the following notice should be attached to the file: This is a case under the Youth Criminal Justice Act and is subject to subsections 110(1) and 111(1) and

section 129 of the Act. These provisions read as follows: 110. Identity of offender not to be published. —

(1) Subject to this section, no person shall publish the name of a young person, or any other information related to a young person, if it would identify the young person as a young person dealt with under this Act. . . . 111. Identity of victim or witness not to be published.—

(1) Subject to this section, no person shall publish the name of a child or young person, or any other information related to a child or a young person, if it would identify the child or young person as having been a victim of, or as having appeared as a witness in connection with, an offence committed or alleged to have been committed by a young person. . . . 129. No subsequent disclosure.— No person who is given access to a record or to whom information is disclosed under this Act shall disclose that information to any person unless the disclosure is authorized under this Act.

Subsection 138(1) of the Youth Criminal Justice Act , which deals with the consequences of failure to comply with these provisions, states as follows: 138. Offences.—

(1) Every person who contravenes subsection 110(1) (identity of offender not to be published), 111(1) (identity of victim or witness not to be published) . . . or

section 129 (no subsequent disclosure) . . . (

a) is guilty of an indictable offence and liable to imprisonment for a term not exceeding two years; or (

b) is guilty of an offence punishable on

summary conviction. Citation: R. v. D.(K.) , 2011 ONCJ 81 ONTARIO COURT OF JUSTICE sitting under the provisions of the Youth Criminal Justice Act , S.C. 2002, c. 1 BETWEEN: HER MAJESTY THE QUEEN — AND — K.D., a young person Before Justice Borenstein Heard on December 22, 2010, January 19, 2011 Reasons for Judgment released on January 28, 2011 Mssrs. K. Stratos and B. Jones ................................................................................... for the Crown Mr. J.

Halberstadt ................................................................................ counsel for the accused K.D BORENSTEIN J.: [ 1 ] This is the sentencing of K.D., who has pled guilty to two unrelated counts of robbery and one count of failing to comply with his recognizance by being out of his mother’s home when he was under house arrest.

[ 2 ] By way of background to these offences, K.D. was previously charged with robbery against a 16 year old named R.S.. R.S. is physically challenged with limited use of his arms and legs. In July 2010, K.D. resolved that robbery charge by entering into a

section 810 peace bond. K.D. had no record at the time. The terms of the peace bond required that he keep the peace and be of good behaviour. It also included terms that he have no contact with R.S. and that he not possess any weapons. K.D. was also bound by another peace bond at the time for an unrelated matter. He was also on bail. [ 3 ] Now, moving forward to the charges before me. On September 19, two months after entering into the peace bond, K.D. and three others were walking on the street. R.S. happened to be in the area. K.D. and his friends approached R.S. from behind.

As they did, K.D. put on brass knuckles and, as he approached, said, “I told you I would catch you slipping”. K.D. struck R.S. in the head knocking him to the ground. All four then began kicking R.S. . They removed the $5.00 R.S. had on him and fled. R.S. went home and told his mother what happened and the police were called. He suffered soreness and swelling to his head and abdomen. [ 4 ] K.D. was arrested for this attack and robbery and was again released on bail. He was placed on house arrest subject to certain exceptions. [ 5 ] On November 19, K.D. was with his friend Ian.

Ian knew a 15-year-old boy and was invited to that boy’s house. K.D. accompanied Ian. As Ian rang the bell, K.D. hid to the side of the front door. When the door opened and the 15 year old invited Ian into the house, K.D. walked in as well. K.D. asked if he could use the boy’s computer. The 15 year old agreed. K.D. then picked up the victim’s laptop computer and picked up a folding knife that was apparently in the house. K.D. then walked into the master bedroom of the home and began looking through the bedroom. He found an envelope with $1,000.00 cash and took it without anyone resisting.

He then left the home with the laptop and the money. K.D. was arrested later that day and has been in custody since that time, 10 weeks as of today. [ 6 ] On December 22, 2010, K.D. plead guilty to the two counts of robbery and failure to comply with his recognizance. There was a joint submission for time served plus probation. I expressed concerns about the adequacy of that sentence for these offences and heard further submissions. I indicated that I was adjourning the matter for a pre-sentence report.

K.D. applied for bail at that time and I rejected that application. [ 7 ] I asked the Crown to advise me if the victims intended to provide victim impact statements or were advised of their right to provide such statements. The Crown did not know but indicated that it would look into the matter. A pre-sentence report was prepared and the matter returned to Court on January 19, 2011. On January 19 th , K.D. had been in custody for eight weeks. The Crown was still unable to advise whether it had looked into the victim impact statement issue. Further submissions were made.

Background of K.D. [ 8 ] I have reviewed the pre-sentence report. The author of the report spoke to K.D., his mother, uncle, grandmother as well as Tazio Clarke, a worker for the African Canadian Youth Justice Program, Ruth Bell, a Safe School Advisor with the T.D.S.B., Percy Trapper, a Social Worker at Brookside Youth Centre where K.D. has been since in custody his November 19 arrest. The author of the pre-sentence report also reviewed K.D.’s records from the Ministry of Children and Youth Services as well as CPIC and school.

K.D. accepts the contents of the pre-sentence report as accurate. [ 9 ] K.D. is 16 years old. He was born in Jamaica. He has a 14-year-old sister. He is close to his mother but his father played no role in his life. That has always upset K.D.. K.D.’s mother re-married and the family eventually moved to Canada in 2004 when K.D. was 10 years old. K.D.’s grandmother was already living in Toronto.

K.D.’s mother separated from her husband a year after moving to Canada and the family initially moved in with K.D.’s grandmother and then into their own home. [ 10 ] K.D. told the author of the p.s.r. that he feels close to his mother, sister, grandmother and his uncle M.L.. K.D.’s mother indicated that her brother M.L. has been a male role model for K.D.. [ 11 ] K.D.’s mother and K.D. both report that K.D. lets his mother know where he is when is out. Discipline at home primarily consists of taking things away from K.D.. His mother believed that K.D. was hanging out with the wrong people.

He would like to finish high school, attend college and get a good job. He would like to become a pilot. [ 12 ] Turning to school, K.D. had to repeat Grade 5. He was diagnosed with ADHD. He does not take his medication due to the side effects. Throughout his time in school, two themes emerge. He is bright with certain strengths. On the other hand, he continually behaves aggressively, threatening and assaulting others. [ 13 ] A 2006 psychological assessment noted that K.D.’s impulse control was an area of concern. K.D.’s teachers stated that K.D. has difficulties seeking positive solutions to conflicts.

He has been in numerous fights over the years. He was placed in alternative schools and the fighting continued. In the 2008-2009 academic year, he was suspended for assaultive and threatening behaviour including a threat to “shank and shoot” other students. He has been suspended from school 28 times since 2005. For all this difficulty, some of his teachers identified his strengths as conceptual reasoning, verbal comprehension, artistic expression and memory processing skills. Yet, time and again, his teachers indicate that his self-control, anger management and conflict resolution remain problematic.

He has been taking classes while in custody at Brookside and hopes to earn a Grade 10 math credit. His school records indicate that he has been overheard obsessively talking about violence and gangs. When asked about gangs, K.D. told the author of the pre-sentence report that he does not agree with the idea of joining a gang because it is “stupid to die for colour”. [ 14 ] K.D. completed an anger management program in May 2010 as part of an extra-judicial sanction. [ 15 ] Mr.

Clarke, from the African Canadian Youth Justice Program told the author of the p.s.r. that he has been involved with K.D. almost daily since September 2010. He had been approached by K.D.’s family after K.D.’s arrest and release on bail for the robbery of R.S. . Mr. Clarke identified K.D.’s needs as conflict resolution as well as avoiding peer pressure and decision making skills. Mr. Clarke will continue to work with K.D.. [ 16 ] K.D. told the author of the pre-sentence report that he does not like being double-crossed but he does not think he has an

anger problem. His mother and family members think the time he has spent in detention since November has been a wake-up call forhim. [17] K.D. has had several opportunities to benefit from the rehabilitative aspects of the Youth Criminal Justice Act. In March of2010, he entered into an extra-judicial sanction agreement in relation to offences of two counts of robbery and failing to comply with twopeace bonds.

K.D. completed 15 hours of community service and completed anger management and those charges were withdrawn inJune 2010. [18] In July 2010, he entered in the peace bond relating to R.S. . [19] As noted, he was arrested on September 19 for robbing R.S. again. After spending three days in custody, he was releasedon bail on a condition of house arrest. In November, he robbed the 15 year old. He has been in detention at Brookside since then.

Thosedetained at Brookside begin at Level I and as their behaviour improves, they are moved to the next level with greater freedoms. [20] According to the pre-sentence report, which K.D. does not dispute, in the two months he has been at Brookside, he hascontinued to engage in violence and threatening behaviour. On November 30, he was found with a pen in his room that had beensharpened. He had several incidents for possessing contraband. In addition, on December 5, he threw a cup of urine at another youth. On December 6, he tried to start a fight with another youth.

On December 20, he refused to follow staff direction and pushed past the staffmember threatening him. On January 7, he was involved in another physical confrontation with a different youth. He apologized to thatyouth after a restorative justice session.

In a January 11 interview with the author of the p.s.r., he indicated that he did not care about hisbehaviour at Brookside initially as he did not think he would be there long but has since learned that, if he behaved, his time at Brooksidewould improve. [21] As of January 18 (the date of the pre-sentence report), he has not moved beyond the first level at Brookside. Impact on victim [22] On today’s date, victim impact information was presented to the Court in relation to the physically challenged victim. Noinformation was presented in relation to the other victim.

Even without victim impact evidence was presented to the Court, it is obviousand I infer that these offences must have been frightening for the two victims. It must have been terrifying, and upsetting for a 16-year-old physically challenged boy to be attacked and robbed by four people, this being the second time by the accused. Likewise, the robberyof the 15 year old in his own home must have left him feeling vulnerable and helpless. The victim impact information, presented onconsent to the Court, reveals that the victim suffered pain in his back for two weeks as a result of this attack. He has moved schools.

Hewill not attend any school in Toronto as he is afraid to go to the mall by himself. He suffers from stage 3, Spinal Muscular Atrophywhich affects his motor control, primarily in his legs. He has difficulty walking and cannot run. This is the person K.D. attacked. As aresult of this attack, the victim does not trust teenagers and has difficulty making new friends. Principles of Sentencing under the YCJA [23] The purpose of sentencing under the YCJA is to hold the young person accountable by imposing just sanctions that havemeaningful consequences and promote their rehabilitation and reintegration into society.

The Act contemplates that such sentences will,in the long term, best protect the public. [24] In determining the appropriate sentence, I have considered the principles set out in sections 3 and 38 of the YCJA.Without repeating those sections, the YCJA recognizes that young people are less mature and have diminished responsibility. A sentenceimposed upon a youth should not be greater than an adult would receive for the same offence, it should be comparable to sentencesimposed upon similarly situated young persons and custody should not be imposed for therapeutic purposes.

A youth sentence must beproportionate to the seriousness of the offence and the degree of the young person’s responsibility. All reasonable non-custodialsentencing options must be considered. The sentence should be the least restrictive possible and the one most likely to assist in therehabilitation and reintegration of the offender. The sentence should promote a sense of responsibility in the offender and acknowledgethe harm done.

Section 38 states that a Court is to consider the young person’s degree of participation in the offence, any time spent incustody, the harm done to the victim, any reparation made, any prior findings of guilt and any other factors relevant to these principles.General and specific deterrence are not considerations although deterrence may be an effect of an appropriate sentence. [25] Even if custody is an available sentencing option, as it is here pursuant to section 39(1)(a), it can only be imposed if othersentences would be inadequate to hold the young person accountable. [26] Accountability, in this context, is roughly equivalent to the concept of retribution, which the Supreme Court of Canadadefined as an objective, reasoned and measured determination of an appropriate punishment which properly reflects the moral culpabilityof the offender, having regard to the intentional risk-taking of the offender, the consequential harm caused by the offender, and thenormative character of the offender’s conduct.

Furthermore, unlike vengeance, retribution incorporates a principle of restraint;retribution requires the imposition of a just and appropriate punishment, and nothing more.” see R. v. M. (C.A.) (1996), (SCC), 105 C.C.C. (3d) 327 (S.C.C.). [27] As stated by the Ontario Court of Appeal in the 2009 decision of R. v. K.L. “at bottom, [the] sentence must beproportionate to the seriousness of the offence and the degree of [the young person’s] responsibility”. That is not to ignore the otherfactors I just mentioned. [28] The aggravating factors in this case include the violence used upon R.S. .

That this was a group attack is also aggravating.So was the use of the weapon. So is the fact that R.S. is disabled. It is also aggravating that K.D. was on various court Orders at the time

including a peace bond ordering him to have no contact with R.S. nor to possess any weapons. His comment to R.S. that he told him he would catch him slipping suggests this was retaliation for going to the police the first time. He was also breaching his house arrest. Arrested for this robbery, and granted bail, he then committed another robbery, this time using only the threat of violence, in the home of 15-year-old victim. K.D.’s actions in that home treated the victim as an insignificant factor unable to resist. [ 29 ] K.D.’s pre-sentence report reveals a history of violent and threatening behaviour.

He has shown no desire to change his behaviour or to rehabilitate himself and become a responsible member of the community despite his exposure to the criminal justice system and the lenient treatment he has received. The consequences he has faced have had no positive impact upon him. He does not act responsibly or like someone who has been held accountable for his actions. I reject the comments of his mother and family that they have seen a change in him since his detention. His conduct in detention suggests otherwise. [ 30 ] On the mitigating side of the equation, he has pled guilty.

That is mitigating and will have an impact on the sentence. Further, he is young and can change his ways. He is bright and, if something causes him to choose to behave responsibly, he can have a bright future. At present, his conduct is menacing and threat to others. [ 31 ] He has demonstrated that he will act violently regardless of Court Orders such as peace bonds and bail terms including house arrest.

He has shown that he will not behave out of custody nor in custody. [ 32 ] Bearing all of that mind, including his guilty plea, his 10 weeks of pre-trial custody, and the fact the fact that his time in custody did not seem to have any impact on his aggressive behaviour, it is my view that no sentence other than a custodial sentence would be fit in this case. [ 33 ] A non-custodial sentence would not hold K.D. accountable for these robberies. It would not promote his rehabilitation or reintegration.

It would be unreasonable. [ 34 ] K.D. has acted as though he is not subject to rules that apply to all members of the community; as though there are no consequences to acting violently and harming others. Peace bonds, bail conditions and even detention in custody has not caused him to modify his behaviour. If he is to become rehabilitated and reintegrate successfully into the community, he must learn that the community expects certain behaviour from everyone, including K.D., or there will be consequences. [ 35 ] He has been dealt with previously by way of EJS and Peace Bonds. He brazenly breached those Orders.

Moreover, he was again released on bail following his arrest in September for robbing R.S. and then committed another robbery. His conduct while in custody demonstrates that he does not think he needs to control his aggressive, violent behaviour. He has shown no insight. He is bright yet he believes he can threaten and assault and steal from people. Despite his intelligence, he shows so little insight into the harm and danger he is causing others and himself. [ 36 ] There is a joint submission for probation.

When I expressed concern about the proposed sentence, neither counsel could provide any information that, to my mind, would justify this sentence. Nonetheless, a joint submission is not to be rejected simply because I disagree with it unless it is contrary to the public interest or would bring the administration of justice into disrepute. The importance of sentencing in accordance with joint submissions is so well known it hardly needs repeating.

The administration of justice functions best when people who give up their right to a trial by pleading guilty are reasonably assured that a judge will honour the joint submission save where the proposed sentence is contrary to the public interest or would bring the administration of justice into disrepute. This assurance is intended to foster confidence that positions arrived at through resolution discussions will be honoured unless unreasonable and contrary to the public interest. Despite the obvious importance of joint submissions, however, a sentencing judge’s duty is to both the offender and to the public.

It may occasionally happen that a judge considers a proposed joint submission to be contrary to the public interest and one that, if imposed, would bring the administration of justice into disrepute.

Where, as here, I am of the view that the joint submission would be contrary to the public interest or would, if imposed, bring the administration of justice into disrepute, I should not merely accede to it because it is a joint submission. [ 37 ] Having considered all of the above and the personal circumstances of K.D., and trying to impose the least restrictive sentence available that would hold him accountable, it is my view that a 12 month custody and supervision order is appropriate in this case to be followed by probation. He has spent 10 weeks in custody.

Given how he has conducted himself in custody, I will give him credit of the equivalent of 3 months incarceration. Given that, I sentence K.D. to a further period of nine months custody and supervision. That means he will spend six months in custody followed by three months of community supervision. The first three months of custody will be secure custody. The next three will be open custody. The final three months will be under community supervision. That will be followed by one year of probation on strict terms. That is with respect to the robbery counts.

He will be placed on 12 months probation for the failure to comply count. [ 38 ] In my view, open custody at this point would be inappropriate in this case. He has demonstrated, even in secure custody, an unwillingness to be governed by rules. It is my view that secure custody is necessary. There will be a graduated process of release into the community.

Following the custody and supervision portion of his sentence, he will be placed on probation for one year: [ 39 ] He is to report to a youth officer. [ 40 ] He will be subject to the mandatory terms of probation. [ 41 ] In addition, he will take and participate in any counselling that may be recommended to him by his youth worker and he is to sign all releases to enable his youth worker to monitor his compliance with this term. [ 42 ] He will reside at an address approved of by his youth worker. [ 43 ] He will have no contact or communication with the victims in this matter. [ 44 ] He will not be within 500 metres of anywhere he knows either of them to live, work, go to school or happen to be.

[ 45 ] He will have no contact with his co-accused. [ 46 ] He will be bound by a 7:00 p.m. to 6:00 a.m. curfew, where he must remain in his residence during those hours unless in the continuous company of this surety.. [ 47 ] He will not possess any weapons as defined by the Criminal Code . [ 48 ] He will attend school or seek and maintain employment and provide proof to his youth worker. [ 49 ] He will be subject to a 10-year weapons prohibition and there will be an Order that he provide a sample of his DNA. Released: January 28, 2011 Signed: “Justice Borenstein”