R. v. Abraham, 2012 MBPC 77

Citation: R. v. Abraham Citation No. 2012 MBPC 77 THE PROVINCIAL COURT OF MANITOBA Winnipeg Centre BETWEEN Her Majesty the Queen ) ) Chantal Boutin, for the Crown ) - and - ) ) Lori Abraham ) ) Taralee Walker, for the Accused ) ) ) Judgment delivered: ) November 21, 2012 HEINRICHS, ROBERT, P.J. INTRODUCTION [ 1 ] Lori Abraham was sixteen years of age when she met Clifford Cook, who was then his late 30’s. She was smoking marihuana on a regular basis and he was able to provide her with the marihuana she needed.

Over time they developed a relationship; Abraham moved in with Cook and his teenage son within a few months. The relationship soon became one where he was jealous, controlling and physically abusive. After two years of this, while going through a significant depression and heavily dependent on marihuana, Abraham finally moved out of the home on May 1, 2010. Two weeks later she told him their relationship was over.

He wouldn’t let go, calling her and trying to convince her it wasn’t over. [ 2 ] On May 24, 2010 Abraham had been texting and talking with Cook about retrieving some personal belongings and a TV from his residence. The dialogue did not end well. That night Abraham and a friend, Thomas Sutherland, consumed a lot of alcohol and she told him about her frustrations with Cook. She came up with a plan to give Cook a scare and so in the early morning hours of May 25 the two of them entered the Clifford Cook residence by sliding open a basement window.

Sutherland had brought a can of bear spray along and once inside, Abraham provided Sutherland with an Exacto knife which she had located among a set of tools in the house. She then led Sutherland to the second floor bedroom where she knew Cook would be sleeping. [ 3 ] Cook was awakened when they entered the bedroom and Sutherland immediately sprayed Cook with the can of bear spray.

He then cut Cook in the chest area with the Exacto knife; a struggle ensued and during this time Abraham kicked and punched Cook several times and Sutherland slashed Cook some more. [ 4 ] Cook’s son awoke as a result of his father’s cries for help and came to the rescue. He was met with Sutherland spraying him in the face with the bear spray. He fell to the floor and Sutherland kicked him several times once he was down. During this time Cook had gotten up and Abraham struck him with a shoe and pushed him down the stairs. Cook’s son was able to get away and find a phone to call 911.

Cook had located a golf club and eventually was able to chase Abraham and Sutherland from the residence. [ 5 ] Clifford Cook and his son both had temporary respiratory and skin irritation as a result of the bear spray that was used by Sutherland. Cook also required a number of sutures to close the lacerations to his ear, chest and hand. He has permanent scarring as a result. [ 6 ] Sutherland and Abraham were charged with a number of offences as a result of this home invasion.

Sutherland was soon located and arrested and eventually a warrant issued for Abraham. [ 7 ] Abraham, who has no criminal record, was only arrested on October 10, 2010. The police released her later that day on a Promise to Appear with Undertaking. She remained on release until August 12, 2011 when she was arrested and charged with breaching some of her bail conditions. Since her arrest on August 12, 2011, she has remained in custody on these outstanding charges. [ 8 ] Lori Abraham has now pleaded guilty to five charges:

from the May 25, 2010 home invasion, 1. Break and Enter, commit assault, 2. aggravated assault, and 3. assault with a weapon, and from August 12, 2011: 4. failing to comply with her recognizance by not abstaining from the consumption of alcohol, and 5. failing to comply with her recognizance by being out past her curfew.

CROWN POSITION [9] The Crown’s position on sentencing is that this is a home invasion which would normally receive a sentence in the range ofeight years custody; however, because the co-accused Sutherland received a sentence of four and one half years for his role in the homeinvasion and because of the Abraham’s lack of a prior record and personal circumstances, as noted in the pre-sentence and Gladuereports, asked that the Court impose a sentence of six and one half years of custody, with credit to be given for the time already spent incustody.

DEFENCE POSITION [10] Counsel for Lori Abraham asked that the Court consider the difficult childhood that Abraham has had, the education andprogress she has made both before and after these offences, the abusive circumstances she found herself in with respect to the victim,Clifford Cook, and her lack of previous criminal involvement when imposing a sentence. She asked for a total sentence ofapproximately three years in custody (or a sentence of two years of custody on a go forward basis - as of July 25, 2012). AGGRAVATING CIRCUMSTANCES [11] This was a violent home invasion. While armed with weapons,

an act of domestic violence was committed. Abraham was theone who came up with the idea and enlisted her co-accused, Sutherland, to help carry out the plan. It was a pre-meditated, prolonged andaggressive attack. Bear spray and a knife were used. Cook suffered serious physical injuries, including cuts to his left hand, his right earand across his chest. There is permanent scarring as a result. He lost wages due to weeks of missed work. Cook’s son was afraid to returnhome and so they incurred significant cost in breaking the lease, storing their belongings and in relocating. [12]

Section 348.1 of the Criminal Code applies. Abraham knew or ought to have known that Cook and his son would be at homewhen she and Sutherland broke into their home that night, and violence was used once they were inside. Indeed, Abraham expected thatthe victim would be home that night. [13] The Crown suggested that 8 years in custody would normally be an appropriate sentence in circumstances such as these.Although the Crown did not specifically refer to cases on this point, R. v.

Pakoo (K.G.) (2004), 2004 MBCA 157 , 190 Man.R.(2d) 133; 335 W.A.C. 133; 2004 MBCA 157 is in the sentencing materials they filed in these court proceedings. In that case, theManitoba Court of Appeal accepted a range of 7 to 10 years as appropriate for a “serious home invasion robbery” and applied the rangeto the circumstances of their case, which they found to be offences that were not a “home invasion robbery” by definition, but werecircumstances that closely resembled one. “SERIOUS HOME INVASIONS” [14] The Manitoba Court of Appeal in a very recent decision, R. v.

G. (L.L.D.) 2012 MBCA 106, has provided guidance as to whento classify the circumstances of a case as a “serious home invasion robbery” or “serious home invasion”, and when to apply the range of7 to 10 years in custody. Mr. Justice Michel Monnin summarized Pakoo and other earlier cases as follows: “In Pakoo, the accused broke into a residence while in the possession of a firearm, which he discharged once and attempted to dischargea second time, in the presence of children. In R. v.

Batwiy (S.B.) and Langston (J.D.) (1996), 1996 ABCA 63 , 178 A.R. 356(C.A.), which was considered in Pakoo, the accused again had a loaded gun and made threats to kill the residents of the home they brokeinto. In R. v. Ross (P.S.) (1999), (MB CA), 138 Man.R. (2d) 75 (C.A.), also referred to in Pakoo, the accused againhad a weapon when he broke into the residence.” [15] The weapon used in the Ross case was also a firearm. Not only was it pointed at the head of one of the victims, the trigger waspulled twice after the victim was asked if he believed in heaven or hell. The victim believed he was going to die.

The two attackers thenforced the victims onto the floor and tied them up, again threatening to shoot them if they were to watch the attackers leave. Ross had acriminal record which included a conviction for a previous break and enter. The Court of Appeal increased his sentence to one of 8 yearsin custody. [16] Monnin, J.A. in R. v. G. (L.L.D.) then pointed out that the Court of Appeal has previously warned the courts about applying toorigidly the sentencing range for “home invasion robberies”. He quoted Steel J.A., in R. v.

McCowan (K.J.) 2010 MBCA 45, 251 Man.R.(2d) 295, where she stated: “I believe it can be misleading to apply the range developed for “home invasion robberies” too rigidly without taking careful account ofthe nuances in the facts of each case.” [17] Monnin J.A. then distinguished the R. v. G. (L.L.D.) circumstances from Pakoo and the other like cases:

“While this offense is a home invasion as defined under s. 348.1 of the Criminal Code , and without in any way attempting to belittle the seriousness of the incident, I am of the view that the judge erred when he found the circumstances of the offense to be analogous to a home invasion robbery, and then imposed a sentence in the range set out Pakoo .” [ 18 ] What were the circumstances of his case? In R. v. G. (L.L.D.) , the accused was convicted of breaking and entering a dwelling house and a committing sexual assault.

He had spent a night with the complainant and two other adults drinking beer at the complainant’s residence. At some point in time the two other visitors left and then accused left. When the three of them were gone, complainant locked the doors and went to bed. At home with her at the time were her six children, between the ages of 11 and an infant. She had also been consuming alcohol that night and had passed out on her bed. At some point in time during the night, the back door of her residence was forced open and the accused came into the residence, removed her pants and panties and climbed upon her.

Two of her children observed this and noted that the accused was moving when on top off the complainant. She learned about what had happened after being told by her children what they had seen during the night. She saw that her door had been forced open and that her car was missing. [ 19 ] At trial, the Court had imposed a sentence of 10 years, relying on Pakoo .

Although the Court of Appeal had significant concerns about the lack of a thorough Gladue report being available for the sentencing of this youthful aboriginal offender, they decided to not delay matters any further and proceeded to substitute what they believed to be an appropriate sentence. Noting that this young adult already had a significant criminal record, the Court of Appeal imposed a sentence of 5 years in custody. [ 20 ] It is important to examine the particular circumstances in this case. Abraham participated in a break in to her ex-common law’s residence for the purpose of ‘giving him a scare’.

She knew that Sutherland had bear spray with him and once inside gave him a small knife to use as well. She did not know what Sutherland would do with those weapons or how anyone in the home would react. She was known to the residents and neither she nor Sutherland wore a disguise of any sort. However, they both carried out her plan and Cook had significant injuries as a result.

Without minimizing the fear that Cook and his son went through that morning, this Court finds that the facts in this case are such that they do not equal the seriousness of the kind of horrifying home invasion robbery as in Ross , or the breaking into a former spouse’s residence with a loaded firearm and discharging it with intent to harm, as in Pakoo . The circumstances of this case do not place it within that 7 – 10 year range. MITIGATING FACTORS [ 21 ] In this matter, Abraham was cooperative throughout her involvement with the police.

She provided a video statement to them admitting her involvement in the incident. She did not minimize her role. She eventually entered guilty pleas to resolve the charges she was facing. She was remorseful. As the author of the pre-sentence report stated, “She understands her actions were criminal, but acknowledged her wrong doing and reported she desperately wants to turn her life around.” Abraham has no previous criminal record. She is a young aboriginal adult who has experienced some significant challenges in her 22 years of life.

THE GLADUE / IPEELEE FACTORS [ 22 ] Abraham was born in Winnipeg but spent most of her pre-school years living in Sagkeeng First Nation with her mother, father and siblings. A brother, then 9 years of age, drowned at Sagkeeng and as a result her mother quit her job and her father began to consume alcohol heavily. Her parents separated and her mother and a new boyfriend moved to Selkirk. She eventually joined her mother there. Her mother began to physically abuse her, hitting her and “throwing her around”. Both her mother and father began to struggle with significant alcohol and drug addictions.

The residential school legacy is a significant part of both her mother and her father’s family histories and her parents were now in a downward spiral of addictions. She witnessed ongoing partner abuse happening in her parents’ lives. [ 23 ] Abraham’s life became nomadic; she was moving from parent to parent and living with other family members. She attended a number of different schools. She lived in Selkirk, Sagkeeng and Edmonton. She also lived with family members in Ontario for a period of time during her teens. Her cousin’s boyfriend physically and sexually abused her while she was there.

By the time Abraham was sixteen years of age, she was living on her own, drinking lots of alcohol, smoking marihuana regularly and dealing emotionally with a history of physical and sexual abuse. [ 24 ] It was at this time that she met the victim, Clifford Cook. He provided her with the marihuana she was using. In spite of the significant age difference and concerns expressed by family members, she developed a relationship with him and soon moved in with him. The relationship soon became an unhealthy one. Cook was controlling, jealous and physically abusive toward her.

She lost contact with her friends and she began to feel isolated and alone. She was afraid and became very depressed. She was now consuming a lot of alcohol and smoking marihuana heavily. In spite of how she felt about herself and the addictions she was struggling with, she was able to move out of the home she shared with Cook in order to “try and move on”. [ 25 ] Abraham was able to carry on with school in all of those difficult teenage years, and even though she took a break between grade 11 and 12, she was able to return and complete grade 12 at College Louis Riel in Winnipeg.

She was accepted into the University of Winnipeg’s Continuing Education Public Relations Diploma Program. Although the pre-sentence report isn’t clear on this, it would appear that she attended this program for a period of time in 2010 before her arrest on the May, 2010 charge. Although it is not clear why, Abraham was not arrested on these charges until October 7, 2010. She then dropped out of that program at some point in time before she was arrested on the breach charges in August, 2011.

What lead up to the latter charges was another situation of being sexually abused by an extended family member, this time while Abraham was staying with a sister, and a return to her alcohol and drug addictions. [ 26 ] Abraham has remained in custody since her arrest on the breaches on August 12, 2011. She has now been in custody for more than 15 months. She was at the Winnipeg Remand Centre for a while. She took an anger management program and attended AA while there. She was moved to the Portage Correctional Centre.

She was there during the transition time of the moving of that correctional centre to the new facility at Headingley. As a result, there were times where there was no programming available at all. As of August, 2012, she was signed up for a thinking awareness program, one of the first programs

she could access after the move. She has been reading self-help books and she is hoping to eventually finish the public relations andmarketing business degree that she started at the University of Winnipeg. She is intending on taking online courses as they becomeavailable to her at the Headingley Correctional Centre. [27] Although an addictions assessment had not been completed at the time of the preparation of the pre-sentence report, it wouldseem obvious that Abraham has an alcohol and drug dependency that needs to be addressed.

Abraham's moves from home to home allinvolved moving away from an abusive relationship or a situation where she was being abused. Each one of the homes she moved out ofor into had residents with significant alcohol or drug abuse problems of their own. Abraham's long term rehabilitation, if it is to happen,will need to include a longer term stable home environment where she is free from personal abuse and the people she is residing with arenot abusing alcohol or drugs. It is likely that living with a family member upon her release will not facilitate her rehabilitation.

If at allpossible, court ordered supervision by way of a lengthy probation order is the best hope for Abraham's successful reintegration intosociety, when she is finally released from custody. SENTENCING PRINCIPLES [28] Sections 718.1 of the Criminal Code sets out the sentencing principles that must be applied. The Court must impose a sentencethat is proportionate to the severity of the offence and Abraham's degree of responsibility. Denunciation and deterrence must beparamount.

It must be a sentence that is similar to other like offenders committing offences in similar circumstances. [29] The Court must take note of the fact that the co-accused, Sutherland received a sentence of 4 and 1/2 years for his

part in thishome invasion. (An unreported decision; the transcript of the sentencing on December 20, 2011 is at Tab 2 of the Crown's SentencingMaterials, filed as Exhibit #2.) This home invasion was not his idea, but he did come along willingly, bringing a weapon - bear spray-with him, willingly accepted a knife from Abraham once inside and then used both weapons. Abraham participated in the assault, but didnot use either weapon herself. As well, Sutherland was on bail for a Robbery with a weapon (bear spray) charge at the time of this homeinvasion.

He had a youth record, but no adult record at the time of sentencing. Gladue factors were considered, but the Court's decisioncame before Ipeelee was given, and the learned trial judge suggested that less weight was being given to the Gladue factors due to theseriousness of the offence. [30] In the Crown's submission, Abraham is "more morally blameworthy" and asked for her to receive a sentence of 6 and 1/2 years.Abraham's counsel suggested that she is not to be treated any more severely than Sutherland; their age, backgrounds and involvement inthis crime are similar enough to not put her in a higher category.

This Court agrees, based on the sentence of the co-accused alone, thather sentence should also be in the range of 4 and 1/2 years. [31]

Section 718.2 of the Criminal Code goes on to require that some further sentencing principles must also be taken intoconsideration. Subsection (

e) directs the Court to pay particular attention to Abraham's personal circumstances as she is an aboriginaloffender. The Supreme Court of Canada in R. v. Gladue (SCC), [1999] 1 S.C.R. 688, 133 C.C.C. (3d) 385, 23 C.R. (5th) 97, and now in R. v. Ipeelee, 2012 SCC 13, [2012] 1 S.C.R. 433, have explained this subsection as follows: 1. There does not have to be a demonstrated casual link between the Abraham's background factors and the offence(

s) she hascommitted. (Ipeelee, paragraphs 80 - 83) 2. Gladue factors must be applied to Abraham even though she has committed a serious violent offence. (Ipeelee, paragraphs 84 - 87)

Section 718.2(

e) is to be considered a remedial provision. Particular attention must be given to the personal circumstances of thisparticular offender, Abraham. This Court is to use "a different method of analysis in determining a fit sentence" for Abraham. (Gladue,paragraph 33) 4. A fit sentence to be arrived at is not a "race - based discount": the Court is not to artificially reduce the sentence, but to payparticular attention to Abraham and her life and circumstances and apply the appropriate sentence for her in this situation. (Ipeelee,paragraph 75) 5.

Even though Abraham's offence is serious, the length of any term of imprisonment given to her must also be considered in light ofthe Gladue factors. (Gladue, paragraph 79) [32] Based on what we know about Abraham's childhood and teenage years, it is clear that she is a bright, engaging and articulateyoung person who has been burdened by her upbringing. As a result of neglect and physical and sexual abuse, she has led a life ofinstability, depression and alcohol and drug addiction, culminating with these offences.

This Court finds that these significant Gladuefactors in this young adult's life must temper the need for a lengthy denunciatory and deterrent sentence. While a sentence of 4 to 5 years,in the range of Sutherland's sentence, would be appropriate, it is not the best sentence for this aboriginal offender in her personalcircumstances.

This Court finds that a sentence that includes all of Abraham's time served in custody to date (15 months and 8 days) plusthe maximum provincial sentence of 2 years less one day, plus a three year probation order to follow is the sentence that best balancesthe need for denunciation and deterrence, parity and the rehabilitation of this aboriginal offender. It is a sentence of more than 3 years incustody, but will not send Abraham to a federal prison.

She will, with this sentence, be able to continue with the programming andeducation already started in the provincial jail and will, in all likelihood not be moved elsewhere. Upon her release, there will be alengthy probation order for her to follow. It will be there to assist her with her rehabilitation and reintegration into society. Theconditions will be somewhat onerous, but this sentence of more than 6 years of custody and community supervision is the leastrestrictive sentence possible for Abraham.

Given her personal circumstances, this sentence pays particular attention to the Gladue factorsas previously noted, and is the least restrictive sanction that is appropriate in all of the circumstances. (Section 718.2 (

d) Criminal Code) [33] Lori Abraham is therefore sentenced as follows: On the Break and Enter commit assault, Aggravated Assault and Assault with a Weapon charges from May 25, 2010: Time served of 15 months, plus 2 years less one day and three years of probation.

[ 34 ] On the Breach of Recognizance charges from August 12, 2011, eight days time served concurrent to each other, but consecutive to the 15 months of time served on the May 25, 2010 charges, plus today's court appearance, plus three years of probation. [ 35 ] On all five charges, the three year probation order is as follows (all statutory conditions apply): 1. report to probation services within 7 days of your release from custody and thereafter as required by them; 2. abstain absolutely from the possession and consumption of alcohol, drugs, non-prescription medication, and medication not prescribed to you by a physician; 3. make an appointment for an addictions assessment at AFM or NADAP within 7 days of your release and attend the appointment and complete the assessment, and take the counselling, treatment or programming as recommended by them; 4. participate in and complete counselling, programming and treatment as recommended by probation services; 5. possess no weapons or firearms; 6. have no contact or communication with Clifford Cook and Brendon Cook and not attend their residence(s); 7. have no contact or communication with Thomas Sutherland and not attend his residence; and 8. for the first 18 months of the probation order the following two conditions apply as well:

a) reside as directed and approved by probation services and not move without prior written permission of your probation supervisor, and

b) comply with a curfew of 11 pm to 7 am, unless there is a medical emergency involving you or a member of your immediate family, or if you have prior written approval from your probation supervisor to be away from your residence. [ 36 ] On the Break and Enter, Commit Assault, Assault with Weapon and aggravated assault charges:

a) a DNA sample is to be provided by Abraham; and

b) a 10 year firearms prohibition is imposed, pursuant to

section 109 of the Criminal Code . [ 37 ] Costs and surcharges are waived as Abraham remains incarcerated. Original signed by: HEINRICHS, ROBERT, P.J.