R. v. Sumner, 2022 MBPC 3

CITATION: R. v. Sumner, 2022 MBPC 3 IN THE PROVINCIAL COURT OF MANITOBA (FASD COURT) BETWEEN: Her Majesty the Queen ) N. Steen ) ) for the Crown ) and ) ) Brandon Sumner ) L. Tailleur ) for the Accused Accused ) ) ) Reasons for Decision: ) Delivered: March 10, 2022 DEVINE, P.J. INTRODUCTION [1] Brandon Sumner pleaded guilty to a residential break and enter commit assault that occurred on April 4, 2020, and anaggravated assault he committed 18 days later on April 22, 2020. He was 21 years old at the time. He does not have a youth record nor acriminal record.

The aggravated assault was extremely brutal. [2] Because Mr. Sumner is Indigenous, the principles enunciated by the Supreme Court of Canada in R. v. Gladue, (SCC), [1999] 1 S.C.R. 688 and R. v. Ipeelee, 2012 SCC 13 are applicable. This matter was heard in Fetal Alcohol SpectrumDisorder (FASD) Court because Mr. Sumner was recently diagnosed with FASD. [3] The break and enter in this case is the same break and enter involved in R. v. Harper, 2021 MBPC 47 where I found one ofMr.

Sumner’s co-accused, Byron Harper, guilty of break and enter commit assault and possession of a weapon. [4] The victims of the break and enter had their back door kicked open, and they were bear sprayed by another co-accused in thisoffence. Mr. Sumner was the person who kicked the door again and again until it burst open. [5] He was the sole actor in the aggravated assault that occurred 18 days later. The offence was unrelated. [6] I watched the videotapes of both offences being committed and filed with the court as exhibits. [7] The doorbell camera of the break and enter shows an athletic Mr.

Sumner launching about 10 powerful kicks to the door, as heholds the railing on either side. The video clearly shows his purposeful kicks. [8] The video of the aggravated assault was from his own phone camera. He filmed himself brutally and viciously punching andkicking his gang brother in the head and face, with blood all over his hands, until the victim was past unconsciousness. He walked to theother end of the otherwise empty room and returned to the body laying on the floor and kept kicking and beating the victim on the headand face. It is sickening to watch.

It shows a hideous, brutal attack on his supposed friend. [9] In imposing the sentences for these offences, I must balance the circumstances of Mr. Sumner as a young Indigenous man intheir proper intergenerational and historical context, the impact of his FASD on his offending behaviour, and the nature and

circumstances of the offences. [ 10 ] This decision has not been easy to make. [ 11 ] The Crown is seeking a penitentiary sentence of six years (three years on the break and enter commit assault and three years on the aggravated assault), emphasizing the need to protect society. This is after the sentence is reduced for totality from eight years due to Mr. Sumner’s reduced moral culpability. The defence is seeking a sentence of two and one half years plus probation (18 months on the break and enter commit assault and 12 months on the aggravated assault).

Both counsel agree that the custodial sentence should be reduced by the time Mr. Sumner has been in custody on remand status. The effect of the defence recommendation would allow Mr. Sumner to be released into the community immediately, with supervision by Probation Services. [ 12 ] This case was particularly difficult to decide because the particular type of secure residential facilities and resources that are designed to heal young Indigenous offenders who are also struggling with FASD, addictions and the intergenerational trauma leading to violence and joining gangs, do not exist.

Specialized resources which include a time away from others, to address intergenerational traumas caused by colonialism and residential schools are required, in this case, to protect society and rehabilitate Mr. Sumner. Nonetheless, this Court is responsible to impose a fit and just sentence. [ 13 ] Protection of society is the primary sentencing objective, through a lens that sees why Mr. Sumner committed these crimes. That leads to the need for rehabilitation. Brandon Sumner cannot be separated from society for the rest of his life. He is young. He can heal.

He has a supportive family, with loving, caring, skilled and wise members, some of whom appeared in court and spoke at the sentencing hearing, as is the practise in FASD Court. He has the support of the FASD Justice Program. He has a history of many gifts, including basketball, dance, and motivational speaking. He must return to these strengths. [ 14 ] He cannot currently live with his parents in St. Pierre, because they are fostering other children and cannot have this violent offender living there.

Similarly, he cannot live with his auntie in Winnipeg because she has children in her home. [ 15 ] There are no traditional Indigenous-run healing centres or place in Manitoba at present that are available for me to send this young man. [ 16 ] The federal penitentiary system is violent, brutal, and full of gangs. He would undoubtedly have to rejoin the gang he was if he wants to survive the penitentiary. [ 17 ] The Supreme Court recognized in Gladue that defence counsel must present a plan to the court so that the court can impose a restorative sentence.

Too often it is left to the court to attempt to impose a fit and appropriate sentence relying on the limited resources in the provincial correctional centres and even federal penitentiaries. Reconciliation requires that money and resources are made available to property assess, house and help heal Indigenous people who commit offences.

This is especially true when the offences are violent and require separation from society for a period of time. [ 18 ] Nonetheless, as a sentencing judge, I will do my best, as directed by the Supreme Court of Canada, to impose a fit and appropriate sentence that takes into account the traumas of intergenerational residential schooling and colonialism generally. FACTS [ 19 ] On Sunday, April 4, 2020, Mr. Sumner and three others were using methamphetamine in a “trap house” and outside encountered a Burmese immigrant, Mr. Saw. There was some negative interaction between him and Mr.

Sumner who then got angry and chased him to his house up the alley. Mr. Sumner then kicked in the door with the intent it seems, to do harm to Mr. Saw. Luckily the victim and his cousin were able to thwart the attempts to get into the house by Mr. Sumner’s group, with a snow shovel. But that was not before one of the co-accused, Ethan Wood, sprayed bear spray into the house. [ 20 ] Mr. Saw and his cousin were directly hit with the bear spray and the entire household was contaminated with it.

Police officers who attended later described the smell and its effects as “aggressive.” The smell was so strong that the police had to interview all the occupants outdoors, even though it was cold outside in early April. [ 21 ] Mr. Sumner was arrested within the hour; he had a hatchet in his backpack. He was intoxicated at the time of his arrest, but gave a statement much later, between 4:46 a.m. and 11:53 a.m., during which time he blamed the victim and used racist epithets to describe him. He told the police the victim got what he deserved and that he did not feel bad about what happened.

He was released by police on an undertaking to have no weapons. [ 22 ] What the police did not know at that time is that Mr. Sumner was involved in a gang. He got into a disagreement or misunderstanding with his so-called friend Evan Habing on April 22, 2020 , about the victim stealing Mr. Sumner’s girlfriend’s laptop. When Mr. Habing apologized for the theft, Mr. Sumner turned “black out mad” in his words, and beat the victim almost to death. He videotaped the beating on his cellphone. The video was filed as an exhibit in this sentencing and played in court. Mr.

Sumner’s mother and aunt were so overcome emotionally that they had to leave the courtroom. [ 23 ] The video was hard to watch. [ 24 ] It shows an empty room where the victim has already been knocked to the floor and is laying on his back, with Mr. Sumner kicking him forcefully on the head and face, again and again. Then Mr. Sumner is sitting on the victim’s upper chest with his knees pinning down the victim’s shoulders. He is punching the victim on the head and face, again and again. Eventually the victim is unconscious.

But the grisly beating continues. [ 25 ] The underlying reason for the beating also emerges on the video. Mr. Habing is being “taught a lesson” by a fellow gang member because he has been stepping out and making money through means other than the proper gang channels, through Mr. Sumner. He tells Mr. Habing, “I thought you were a bro”, accused him of stealing from “my family” (presumably the gang) and “the only way

you’re going to be making money is through me.” He beat Mr. Habing past the point of unconsciousness. He paces, says things to him,then circles back and continues to kick the unconscious victim in the head. It is a terrible video of sadistic violence. [26] After the protracted beating Mr. Sumner slept, and only several hours later in the morning he forced the victim at knifepointinto another bedroom in the house. Then he called for an ambulance. He told paramedics that unknown people assaulted the victim. [27] Mr. Habing was taken to the Health Sciences Centre hospital.

He had a fractured nose, fractured orbital bone, fractured jaw,and internal bleeds to his scalp and back. Both eyes were swollen shut. He had a footprint on his forehead. He could not remember theincident. Miraculously, he made a full recovery. Not surprisingly, he did not provide a Victim Impact Statement. [28] This is was not a heat of the moment attack. Not only was the beating protracted and then exacerbated over many, many hoursending in a diversionary plan to point the blame on unknown attackers, but also, Mr. Sumner shared the video. It was posted onFacebook May 6, 2020.

He also showed it to the higher ups in the gang, presumably to prove his loyalty and worth. [29] This was a gang crime. Mr. Sumner told police he was a member of the Central Crips when he was arrested May 13, 2020 andthat he had to discipline the victim who had not been following gang protocol. His own Facebook page shows him making gang signs ofthe Central Crips. [30] There was significant chatter about the video on Facebook, with Mr. Sumner weighing in. He expressed no remorse. Instead,he justified his actions, continued to blame the victim and called him down. Others in the chat are horrified at the violence.

SENTENCING: ITS PURPOSE, GUIDING PRINCIPLES AND OBJECTIVES [31] The fundamental purpose of sentencing as set out in Criminal Code s. 718 is to protect the public and to contribute to respectfor the law and the maintenance of a just, peaceful and safe society. This is accomplished by imposing just sanctions that have one ormore objectives.

Those objectives include denouncing unlawful conduct and the harm done to victims, deterring the offender and othersfrom committing offences, separating offenders from society where necessary, rehabilitation, reparations for harm done to victims or thecommunity, and promoting a sense of responsibility in offenders and acknowledgment of the harm done to victims or the community. [32] Specific deterrence, separation of the offender from the community and rehabilitation are engaged in this sentencing.

Thecentral objective of the sentence must be protection of the public however. [33] The fundamental principle of sentencing is proportionality – the sentence imposed must be proportional to the gravity of theoffence and the degree of responsibility of Mr. Sumner. [34] My objective is to impose a sentence that will denounce violent “lessons” engendered by gang culture and to effectively deterMr. Sumner from any future criminal behaviour and rehabilitate him.

But this is challenging not only because of the lack of appropriateresources, but also his limited demonstrated motivation and insight. [35] Ultimately, the sentence I impose must be proportional to the seriousness of the offences and the degree of responsibility of Mr.Sumner in committing those offences. PROPORTIONALITY [36] In R. v. Nasogaluak, 2010 SCC 6, Justice LeBel explained what proportionality means in the context of sentencing, as follows: For one, it requires that a sentence not exceed what is just and appropriate, given the moral blameworthiness of the offender and thegravity of the offence.

In this sense, the principle serves a limiting or restraining function. However, the rights-based, protective angle ofproportionality is counter-balanced by its alignment with the "just deserts" philosophy of sentencing, which seeks to ensure thatoffenders are held responsible for their actions and that the sentence properly reflects and condemns their role in the offence and theharm they caused (R. v.

M. (C.A.), (SCC), [1996] 1 S.C.R. 500 (S.C.C.), at para. 81; Reference re s. 94(2) of the MotorVehicle Act (British Columbia), (SCC), [1985] 2 S.C.R. 486 (S.C.C.), at pp. 533-34, per Wilson J., concurring).Understood in this latter sense, sentencing is a form of judicial and social censure (J.V. Roberts and D.P. Cole, "Introduction toSentencing and Parole", in Roberts and Cole, eds., Making Sense of Sentencing (1999), 3, at p. 10).

Whatever the rationale forproportionality, however, the degree of censure required to express society's condemnation of the offence is always limited by theprinciple that an offender's sentence must be equivalent to his or her moral culpability, and not greater than it. The two perspectives onproportionality thus converge in a sentence that both speaks out against the offence and punishes the offender no more than is necessary.

The language in ss. 718 to 718.2 of the Code is sufficiently general to ensure that sentencing judges enjoy a broad discretion to craft asentence that is tailored to the nature of the offence and the circumstances of the offender. . . (at paras. 42- 43) (Emphasis added.) [37] The Supreme Court has recognized that an Indigenous person’s moral culpability in committing offences is impactedsignificantly by the legacy of colonialism in Canada: . . . .

The unbalanced ratio of imprisonment for aboriginal offenders flows from a number of sources, including poverty, substance abuse,lack of education, and the lack of employment opportunities for aboriginal people. It arises also from bias against aboriginal people andfrom an unfortunate institutional approach that is more inclined to refuse bail and to impose more and longer prison terms for aboriginaloffenders.

There are many aspects of this sad situation which cannot be addressed in these reasons... (Gladue, at para. 65) The background factors which figure prominently in the causation of crime by aboriginal offenders are by now well known. Years ofdislocation and economic development have translated, for many aboriginal peoples, into low incomes, high unemployment, lack ofopportunities and options, lack or irrelevance of education, substance abuse, loneliness, and community fragmentation. These and otherfactors contribute to a higher incidence of crime and incarceration. . .

. . . the circumstances of aboriginal offenders differ from those of the majority because many aboriginal people are victims of systemicand direct discrimination, many suffer the legacy of dislocation, and many are substantially affected by poor social and economicconditions... (Gladue, at paras. 67-68) (Emphasis added) [38] I must consider the unique systemic and background factors that have played a

part in bringing Mr. Sumner before the courts. . . . . Many Aboriginal offenders find themselves in situations of social and economic deprivation with a lack of opportunities and limitedoptions for positive development. While this rarely - if ever - attains a level where one could properly say that their actions were notvoluntary and therefore not deserving of criminal sanction, the reality is that their constrained circumstances may diminish their moralculpability. As Greckol J. of the Alberta Court of Queen's Bench stated, at para. 60 of R. v.

Skani, 2002 ABQB 1097, 331 A.R. 50,[page478] after describing the background factors that lead to Mr.

Skani coming before the court, "[f]ew mortals could withstand such achildhood and youth without becoming seriously troubled." Failing to take these circumstances into account would violate thefundamental principle of sentencing - that the sentence must be proportionate to the gravity of the offence and the degree ofresponsibility of the offender. (Ipeelee at para 73.) The Seriousness of the Offences [39] Sentences for residential break and enters are generally significant, owing to the seriousness of violating the safety and privacyof one’s home.

When an assault and weapons are involved, the sentence is generally increased. [40] In this case, Mr. Sumner and the three others chased the victim into his house and kicked the door open, the event culminatingwith Wood spraying bear spray into the victim’s face and that of his cousin. [41] It was a Sunday afternoon and the house was full of family, friends and children visiting. The break in would have beenterrifying for the people in the house. A woman could be heard screaming from inside. It bears repeating that the facts of these offencesare extremely serious. [42] Mr.

Sumner was angry at the victim and blamed him, and clearly the offence was motivated by racism, which is statutorilyaggravating in s. 718.2(a)(i). [43] The aggravated assault was extremely serious. It was gang motivated at least in part. It was protracted. Mr. Sumner continuedto beat the victim after he was unconscious. He held the victim in the house. It was not until hours later in the morning that he finallycalled for medical help and then lied about his involvement. It did not end there though.

He then showed off the beating to his superiorsin the gang and then either posted it or allowed it to be posted and participated in the conversation about the beating. [44] Most people were offended and shocked by the video. I add that the conversation was within a group of people using streetslang, replete with nick names, street shorthand and tough talk. But those people, Mr. Sumner’s peers, were universally shocked andappalled by what he had done. [45] Not only was the aggravated assault normatively shocking in the broader society.

It was shocking within the smaller,presumably street and drug involved subculture in which Mr. Sumner travelled at the time. [46] The assault and the offender’s behaviour afterwards, withholding medical treatment, filming it, posting it and commenting onit, demonstrated a lack of humanity. [47] At the time he was on bail. He was prohibited from possessing weapons. The Offender: his Moral Culpability in Committing these Offences [48] I draw from the Supreme Court of Canada’s adoption of the Alberta Court of Appeal’s comments in R. v.

LaBerge, 1995 ABCA196 at paragraph 21 on how to assess moral culpability, in R. v. Stone, (SCC), [1999] 2 S.C.R. 290 at paragraph 247. This passage was relied on my colleague Associate Chief Judge (A.C.J.) Krahn in R. v. Traverse, 2019 MBPC 15, another aggravatedassault case: . . . the Court must look not only at the physical characterization of the act itself, but must assess a range of other considerations.

Theseinclude the choice of weapon used to effect the unlawful act, the degree of force the offender used in perpetrating the act, the extent ofthe victim’s injuries, the degree of violence or brutality, the existence of any additional gratuitous violence, the degree of deliberationinvolved in the act, the extent to which the act reflected forethought of action or planning, the complexity of the act, what, if anything,provoked the act, the time taken to perpetrate the act, and the element of chance involved in the resulting death. (Cited in Traverse, atpara. 23) [48] In the case of the break and enter offence, the degree of force used in kicking in the door was significant.

No weapon was usedby Mr. Sumner. I am not relying on his knowledge of Ethan Wood carrying and using bear spray. It appears like a temper tantrum. Hewas angry at Mr. Saw; he chased him and then tried to kick his door in. He made racist comments to Mr. Saw and to the police aboutMr. Saw. It was an angry, racist and violent act with little planning, more akin to an emotional reaction. [49] The aggravated assault demonstrated a much higher degree of moral culpability. Although it appears initially that Mr.

Sumnerreacted violently and angrily to Habing’s eventual admission to stealing his girlfriend’s laptop, it became apparent that the more pressing

reason for the violent beating was to teach Habing a lesson for the gang. Habing was apparently buying from someone else, or selling for someone else. Mr. Sumner filmed the brutal and ongoing beating. It was vicious. The force of the kicks and punches was sickening, particularly after Habing was unconscious. The extreme force and violence of the kicks, stomps and punches to the head and face could have resulted in death. The violence was gratuitous. The beating was protracted. There was a decision made not to get him medical help. Then he misled paramedics about what happened. He stayed underground.

A warrant issued. He showed the higher ups in the gang the film of the beating. Then he posted or allowed the video to be posted on Facebook and engaged in chat about it and his actions. This demonstrates a very high degree of moral culpability. As the Alberta Court of Appeal stated in R. v. Arcand , 2010 ABCA 363 at paragraph 58 , “The greater the harm intended or the greater the degree of recklessness or wilful blindness, the greater the moral culpability.” [ 50 ] Like the offender in Traverse , Mr. Sumner was intoxicated by drugs and alcohol at the time. Like ACJ Krahn found in that case, I find that Mr.

Sumner’s assault on Mr. Habing was “deliberate and occurred out of anger fueled by intoxication.” (at para. 34) [ 51 ] The inquiry into moral culpability does not end there. This young man is Indigenous, and suffers from FASD and several psychological diagnoses. [ 52 ] The Courts have recognized that a person’s moral culpability is often reduced due to brain injury caused by FASD. ( R. v. Friesen , 2016 MBCA 50 ; R. v. Okemow , 2017 MBCA 59 ) [ 53 ] Manitoba has one of the highest incidences of FASD.

Many world leaders in the diagnosis, assessment and treatment of FASD work in the FASD Centre at the Health Sciences Centre in Winnipeg.

As a result of their work and the high number of individuals with FASD coming into the criminal justice system, an FASD Justice Project was created, and the Provincial Court of Manitoba instituted a specialized FASD disposition court in early 2019: . . . to provide the accused with a court environment that takes into account the specific deficits identified in the FASD assessment report and how they might be related to the offender’s moral blameworthiness or degree of responsibility for an offence.

If there is a link between the deficits resulting from FASD and the offending behaviour, the Court would explore how the sentence imposed would best reflect and respond to that link. (http://www.manitobacourts.mb.ca/site/assets/files/1175/notice_-_fasd_dockets_-_adult_and_youth- 1.pdf) [ 54 ] In FASD Court, the offender’s FASD assessment report is filed, along with a Court Docket

Summary and general materials on FASD prepared by the FASD Justice Project. [ 55 ] In Mr. Sumner’s case, his family pressed for an FASD assessment for some months and for the sentencing hearing to be heard in this court. [ 56 ] The FASD Justice Project materials state that in order to receive a diagnosis of FASD, the person must have severe deficits in three of the nine domains of the brain. Mr.

Sumner has severe impairments in three domains of his brain, those being: 1) Attention; 2) Executive Functioning; 3) Adaptive Functioning [ 57 ] According to the materials filed, when a person’s Executive Functioning is impaired, their ability to organize and control their thoughts and behaviours in order to meet long term goals is affected. There is an inability to inhibit behaviour and exhibit emotional control. There is an inability to initiate, plan and organize, and self-monitor.

Persons whose executive functioning is impaired are impaired in their working memory, which involves the ability to temporarily retain information in memory, perform tasks involving memory, and produce a result. Working memory involves attention, concentration, mental control and reasoning.

Impairment in executive functioning manifests as poor judgment, inability to understand consequences and a requirement for external mentoring. [ 58 ] When a person’s attention regulation is severely impaired, they have deficits in inhibition. [ 59 ] When a person’s adaptive functioning is impaired, they have difficulty in adapting to their environment, meeting social expectations and accessing necessary resources. [ 60 ] Viewing the commission of the offences taking these severe deficits into account, it is obvious that Mr. Sumner’s FASD profoundly informed his behaviour in committing the offences.

The manner in which the robbery was committed demonstrated a lack of inhibition, it was impulsive, and demonstrated a lack of emotional and behavioural control. The manner in which the aggravated assault was committed demonstrated a lack of inhibition to use extreme and prolonged violence, a lack of emotional and behavioural control, and a lack of social adaptive functioning. The information provided in the Pre-Sentence Report (PSR) and from Mr. Sumner’s father augments this information. His father acted as an “external mentor” for Mr. Sumner when he was young. Without that positive, prosocial mentoring, Mr.

Sumner was left to the gang culture and glorification of violence and payback as his mentoring. [ 61 ] Severe impairments to Social Adaptive Functioning also means that the person is unable to adapt to their environment and meet the requirements of daily living. They are often unable to recognize social expectations and access resources. Mr. Sumner’s impairment in this area is exemplified by his inconsistent educational and work accomplishments, and his drift into gang culture. [ 62 ] Similar to the circumstances in the Friesen case, Mr.

Sumner was extremely intoxicated when he committed these offences to the extent that he cannot remember any of the details of either incident. In speaking with the PSR writer, he admitted that when he becomes intoxicated he becomes “aggressive” and, “All my pent up anger comes out.” He admitted to mixing Xanax and cocaine while drinking, which “does not mix well; I get put into a psychosis sometimes.” As Justice Monnin stated in Friesen :

. . . voluntary intoxication is rarely capable of supporting an argument of diminished responsibility as we ascribe to the individual the ability to stop the drinking which led him to the situation in question. In this case, however, one must recognize the diagnosis of pFAS and what that entails. Given that the accused was prone to impulsive and irrational actions and with limited ability to foresee the consequence of his actions, to suggest that his self-knowledge of the effects of alcohol should lead him not to indulge is, with respect, placing too high of an expectation on someone with his diagnosis.

It is inconsistent with the medical evidence. Given his diagnosis, I am of the view that his lack of control when intoxicated was a factor in his unprovoked attack. Such conduct stems from his condition and it should have been considered as a mitigating factor. (at para. 29) [ 63 ] I accept that Mr. Sumner’s diagnosis of FASD significantly affected his moral culpability in committing these offences. His life situation and the offences themselves are demonstrative of severe impairments to his attention, executive functioning, and social adaptive skills. [ 64 ] Mr. Sumner is a 23-year old Indigenous man.

He was 21 years old, angry, intoxicated, and gang-involved when these offences occurred. The first eight years of his life were brutal and have had long-lasting negative impacts on him. His single mother from Little Saskatchewan First Nation did not have the support of her Bosnian husband to help her raise the children. Mr. Sumner does not know the name of his biological father. His mother was a heavy drug and alcohol user; the legacy of that trauma he carries throughout the rest of his life with an organic brain injury, FASD.

He was apprehended by CFS at the age of three weeks when he was found alone without care. [ 65 ] He was moved 16 times before he was eight years old. He remembers physical abuse. He lived with a sibling only once, for about a year. He did not know his younger siblings. [ 66 ] It is clear in reading the PSR filed in this sentencing that Mr. Sumner has never been to the ancestral lands of his people. He does not know his family. He was abandoned. The level of abandonment that he has internalized has stayed with him throughout his life.

His step father and aunt both spoke about this eloquently in their submissions to the Court. [ 67 ] He lived with a very positive, Indigenous family in St. Pierre, from the time he was eight years of age until he was 18. The Vincents are his de facto mother and father. Ms. Vincent is Oji-Cree from Berens River. Mr. Vincent, although not born Indigenous, has been adopted by his wife’s people. [ 68 ] The Vincents have specific training and expertise working with and bringing into their home and family complex, high needs teens. Mr. Sumner was the first young child to come into their home.

In their words, they fell in love with him. When Mr. Vincent told the child he could call him “Chad” or whatever he wanted to call him, eight year-old Mr. Sumner stated, “I’m going to call you dad” because he could not remember people’s names from all the foster homes anymore. [ 69 ] Mr. Vincent described in the sentencing hearing how Mr. Sumner as a child would have temper tantrums that would last up to three hours. Eventually, he sat with Mr. Sumner: . . . I think one of the stronger themes in Brandon's life is attachment and reactive attachment disorder. So reactively he would take tantrums up to three hours.

And because he wouldn't understand, he would loop in these tantrums. They would be over wanting a story that would last two minutes and he would get into a loop. And -- and so finally, after taking some attachment -- reactive attachment disorder training, I sat with him one night while he went through his tantrum. And he never tantrumed again because he understood that I was going to sit with him when he goes through his hard times. [ 70 ] The “loop” and the tantrum are evident in the prolonged beating of Mr.

Habing. [ 71 ] With structure, positive activities and, eventually, trust that the Vincents were not going to abandon him, Mr. Sumner was able to develop and use his talents and gifts. He was a very promising basketball player. As a basketball star, he gave a speech before 300 benefactors at a local youth centre, garnering a standing ovation.

He also excelled at dance – the Vincents were told he was a “natural” and they could expect to see him in Toronto or New York City with his dance. [ 72 ] All the good things in his life, the structure, the family, the love and accomplishments he had made, began to unravel when he was about 18 years old. While living in St. Pierre, he still faced racism in a mainly non-Indigenous town and school. He was expelled from school. This was before he was diagnosed with FASD. He moved out, found a girlfriend, she became pregnant, they fought.

He described the relationship as toxic. [ 73 ] The PSR states that his parents describe him as having: . . . severe trust and abandonment issues and has always struggled to manage his emotions that contributed to ongoing challenges managing his anger and temper tantrums as he grew up. They recalled incidents whereby he entered arguments with his past romantic partner and had punched a hole in the wall. Mr. and Mrs.

Vincent stated, “He was a very energetic, loveable kid but he needed a lot of direction and guidance.” They confirmed he received minimal visits with his biological family in Little Saskatchewan First Nation as a child. However, they disclosed these visits further contributed to his abandonment issues as he would be ignored by his mother who gave his older brother all of the attention because they used drugs together. [ 74 ] The FASD assessment report and Court Docket

Summary indicate that Mr. Sumner has severe impairments in attention, executive function and adaptive function. Read in combination with the reports from his parents in the PSR, a picture emerges of how the FASD has affected him in all aspects of his life: • Impulsivity • Poor decision-making • Could not manage money

• Struggled with relationships • Would compulsively lie when in trouble • Unable to consider the consequences of his actions • Uncontrollable, lengthy tantrums [75] He was also diagnosed with Attention Deficit Hyperactivity Disorder (ADHD), Oppositional Defiance Disorder (ODD) andreactive attachment disorder at the age of 16.

His parents described in the PSR that because of his complex mental health concerns hehad challenges at school and in the community; they were “constantly getting calls from the school and from community members due tohim getting into trouble.” [76] The mental disability, mental health and Gladue challenges also led to his eventual criminal behaviour. He was forced to leaveextended Child and Family Services (CFS) care when he failed to stay in school or keep employment after age 18. He left his parents’home. His drug use escalated and he started talking of the gang lifestyle.

His biological family, whom he has some contact with, isgang- and criminally-involved. He was selling drugs on the street. His parents told the PSR writer, “He’s very much affected by theenvironment he’s around. He’s extremely fragile.” [77] His aunt also described a descent into drugs and crime with the common thread of abandonment running through it.

His exitfrom his parents’ home, their move to Alberta, and then moving in with his girlfriend and having that family connection break down,was devastating for him and he started using more drugs. [78] His criminal behaviour, in particular unresolved anger and a drift into the gang lifestyle must be seen within this context. It isbest summarized in the PSR at page 18: The subject survived a tumultuous childhood characterized by extensive trauma including, agency involvement from infancy,abandonment and disconnection from biological family, neglect, and abuse.

He has complex needs including diagnoses of ADHD, ODD,and reactive attachment disorder. Furthermore, it is highly suspected he has FASD despite being unable to receive the formal diagnosis. The subject has struggled with a variety of challenges throughout his life such as severe impulsivity, difficult managing emotions, poordecision-making and inability to consider consequences to actions, substance use, and overall self-management skill deficits. He hastrust and abandonment issues and relationships are an ongoing area of concern for him as he constantly tries to prove himself to others toformulate connections.

The subject’s only source of support and positive modelling has been through his foster family where he wasplaced at the age of eight until he exited care at age of 19. Following his exit from care, his foster family relocated and his lifeprogressively deteriorated with escalated drug use and he became entrenched in a criminal lifestyle until his current incarceration. [79] Mr. Sumner’s offences are therefore understood within the context of his history and circumstances as an Indigenous personand his FASD and complex mental health diagnoses.

His moral culpability in committing those offences was therefore greatly affectedby those circumstances. OTHER SENTENCING PRINCIPLES 1. Parity in Sentencing [80]

Section 718 of the Criminal Code requires that similar offenders who commit similar offences should receive similarsentences. Break and Enter, commit assault [81] In R. v. Duerksen, 2012 MBCA 41 the Manitoba Court of Appeal recognized that two years will normally be a fit sentence on asingle residential break and enter, but that higher sentences could be expected where the offender knows that the residence is occupiedand violence is used or threatened or where there are other aggravating factors. To the extent that two years is a “starting point”, it isnon-binding guidance to a sentencing court. (R. v.

Parranto, 2021 SCC 46 at para. 3) [82] The Supreme Court addressed the issue of starting points and sentencing ranges in Parranto, reiterating the proper role thatappellate direction can take in any jurisdiction, in essentially “bundling” parity analyses from a multitude of cases to provide guidance tosentencing courts.

This does not obviate the need to sentence Indigenous offenders differently: We also heard submissions that starting points impede sentencing judges in applying the principles in Gladue to Indigenous offenders.As noted, sentencing judges have the authority to adopt a different and individualized method of sentencing to reach a fit sentence forIndigenous offenders (Ipeelee , at para. 59). This does not mean that Gladue and starting-point methodologies are mutually incompatible.When applied properly, starting points do not prevent judges from giving effect to s. 718.2(

e) and the principles in Gladue , asdemonstrated by R. v. Skani, 2002 ABQB 1097, 331 A.R. 50, a case involving the three-year starting point from Johnas , and R. v. Paul,2016 ABPC 113, a case engaging the eight-year starting point from R. v. Matwiy, (1996), 1996 ABCA 63 , 178 A.R. 356(C.A.). In Paul, for example, Gladue factors played a central role in assessing the moral culpability of the offender, ultimately justifyinga downward departure from the eight-year starting point to a sentence of five years (para. 56).

These examples show that starting-pointjurisdictions have been able to integrate Gladue principles into the starting-point methodology (see also R. v. Beardy, 2017 MBPC 32, atparas. 9, 12 and 16 , aff’d 2018 MBCA 52). When reviewing sentences imposed on Indigenous offenders, appellate courts must bear in mind that a “formalistic approach to parity”should not be allowed to “undermine the remedial purpose of s. 718.2(e)” (Ipeelee , at para. 79). Whether starting points or ranges areused, sentencing judges are under an obligation to factor in the “unique circumstances of an Aboriginal offender which could reasonably

and justifiably impact on the sentence imposed” (para. 72; see also R. v. Park, 2016 MBCA 107, 343 C.C.C. 3(d) 347, at para. 24). Asrecognized by the Court of Appeal of Alberta in R. v. Swampy, 2017 ABCA 134, 50 Alta.

L.R. (6th) 240, at para. 36, “[t]here can be nosound proportionality analysis in the case of an Aboriginal offender without considering the impact of the offender’s Aboriginal heritageon his moral culpability.” The Court of Appeal has also stated that it is an error in principle for a sentencing judge to refer to Gladuefactors without considering the impact of those factors on moral blameworthiness (R. v. Bird, 2021 ABCA 243, at para. 20 ). (paras 49-50) [83] The obvious place to start this analysis is to consider the sentences imposed for Mr.

Sumner’s two co-accused. [84] Ethan Wood pleaded guilty on his first court appearance. He did not plead guilty to assault with a weapon, that is, assaultingthe residents of the home with bear spray. The bear spray was not mentioned during the sentencing hearing, nor was the videotape ofthe offence played. He pleaded guilty to forcible entry. The sentencing judge accepted the joint recommendation for a 30-day sentence,presumably based on the extremely early guilty, his age of 18 years, and his FASD diagnosis.

In the circumstances of it being a jointrecommendation with very little information provided to the sentencing judge, there is virtually no weight I can attach to the sentence asa useful comparator (See R. v. Reader, 2008 MBCA 42 at paras. 17 – 18; R. v. Gladue, 2018 MBCA 89 at para. 14). [85] The other co-accused, Byron Harper, received a sentence of three years minus the time spent in custody, followed by threeyears of supervised probation (R. v. Harper, 2021 MBPC 47). Mr. Harper was much older, 31 years of age, with a lengthy and seriousrecord, was a former gang member and was convicted after trial.

He was also likely suffering from FASD, but had not at the time beenassessed (The court was advised at the time of the sentencing that arrangements were subsequently made for an assessment). But he hadworked very diligently during his remand status to rehabilitate, had demonstrated significant emotional, cognitive, psychological andpro-social progress, had improved his relationships and had significant support within corrections from staff at the jail, ProbationOfficers and the jail psychologist who attended the sentencing hearing in his support.

He had truly and demonstrably “turned a corner”in his life. [86] Mr. Sumner has not demonstrated the same degree of commitment to rehabilitation. He has not done any programming norreceived any counselling while on remand status. He notes only that he could benefit from anger management and counselling.

He isconsidered a very high risk to reoffend, based on his criminal lifestyle, including his gang lifestyle, his multi-needs and I would add, thedemonstration of how violent he can be in the community and even in jail, where he became involved in a fight with another inmate andon another occasion threatened staff. [87] Sentencing of Indigenous peoples always requires an analysis that takes into account their unique circumstances as Indigenouspeople.

For example, the Supreme Court recognized that “unemployment” is different for an Indigenous person from a reserve wherethere are no job opportunities (Ipeelee at paras. 78-79). The unique type of deprivation and trauma experienced by an Indigenous personby reason of their Indigeneity must always be brought into the parity analysis. [88] It is extremely difficult to compare with any precision the multi-faceted traumas experienced and internalized by Indigenousoffenders.

So, for example, it is difficult to compare the effect of extreme intoxication after experiencing the murder of a relative hoursbefore an offence, with the effect of intoxication coupled with impaired executive function and impulsivity due to FASD. [89] In R. v. Catcheway, 2013 MBPC 60 the 23-year-old Indigenous offender was sentenced to four years for a residential break andenter and assault. His circumstances as an Indigenous man were not unlike Mr. Sumner’s and he had just experienced the sudden,violent death of his sister-in law such that at the time of the offence he was extremely intoxicated and in shock.

His moral culpability dueto that circumstance was therefore reduced significantly. Mr. Sumner had not experienced such a traumatic event just before theoffence. There are other distinguishing features that explain the four-year sentence for Mr. Catcheway. Most significantly, Mr.Catcheway had an unbroken record of break and enters; this was his eleventh conviction for break and enter. The violence and harmcaused were more significant than in this case: Mr. Catcheway was only momentarily deterred at the door – he then entered the houseand proceeded to the second floor where the occupants were hiding.

He entered a bathroom and bear sprayed one victim in the face. The occupants jumped out of the second story window and had significant injuries. There were no mitigating circumstances found. Hehad made no efforts towards rehabilitation. [90] The Crown also filed R. v. Clark, 2013 BCPC 143 where an eight-year sentence was imposed for a residential break and enterand robbery by three masked co-accused. This case is distinguishable. It was sentenced as a home invasion, where the range ofsentences in British Columbia was six to 13 years.

Other significant distinguishable factors were that the accused J.R.H. was 55 years ofage with a lengthy record of violent offences including manslaughter, one aggravated assault, one assault cause bodily harm, four otherassaults, 10 weapons and firearms offences and two previous break and enters. The three marauders planned the offence, which was tocollect a debt. They entered the home and bear sprayed the occupants, one of whom was in bed and who suffered from quadriplegia.

Although the accused was of Indigenous heritage, the sentencing judge did not take his circumstances as an Indigenous person intoaccount in any significant way when sentencing him (at paras 5-7). Aggravated Assault [91] There were several cases filed with respect to aggravated assault. The Crown filed cases where the sentences imposed for theoffence ranged from four to seven years. Defence filed cases where the sentences imposed ranged from a suspended sentence to twoyears. In R. v.

M.O., 2011 MBPC 47, Judge Carlson reviewed a long list of aggravated assault cases identifying a range of 16 months tosix years incarceration. (cited in Traverse, at para 56). The judges in R. v. Mianscum, 2019 QCCQ 3829 and R. v. Holy Singer, 2016ABPC 304 also canvassed numerous aggravated assault sentencing decisions. [92] I am of the view that the offences were more serious and offenders had higher degrees of moral culpability in the cases filed bythe Crown, such that the sentence of five years sought by the Crown may be high. That being said, the degree of gratuitous violenceused by Mr.

Sumner and filming the beating calls for denunciation. [93] There are several “one punch” aggravated assaults where the victim was knocked to the ground with their head hitting concreteresulting in serious injuries. In R. v. Sesay, 2020 BCPC 138, the sentence for an aggravated assault was four years. The offender

punched the victim once in a bar, after the victim told the offender’s girlfriend to back off when she interrupted a conversation. The victim was seven inches shorter and weighed 65 pounds less than the offender. The powerful punch, which resulted in the victim striking his head on cement, caused fractures of his orbital bone, jaw and skull. The victim was significantly impacted for a long period of time. The offender had a long record of violence; his record was described as “horrendous” by the British Columbia Court of Appeal.

He was serving a six-year sentence for an aggravated assault that occurred 13 days after the current aggravated assault. He had a very difficult upbringing. The facts were similar in Mianscum , the 24-year-old accused punched the victim once after the victim made a crude and misogynist comment to the accused’s female cousin, and the victim hit his head on the pavement and lost consciousness. Similar to the victim in Sesay , there were long term serious impacts to his brain and physical function, and attendant psychological and emotional sequelae. The accused in Mianscum was not like Sesay however.

He had tried to help the victim after the punch. He had a dated, very minor and unrelated criminal record with no violence. The sentencing judge outlined the community impact of colonialism on the accused’s small Indigenous community as well as the personal impacts. He was very active in his community, working in the community sports complex as a chef, after having taking culinary management in collage. He had future plans to become a chef. Subsequent to the offence, he worked with community elders and the local justice committee and practised Aboriginal ceremonies, and took anger management programming.

He stopped using drugs. He prepared a PowerPoint presentation about the risks associated with drinking that he planned to present to young people in the community. He was described as being “already an asset in his community.” In Traverse , the accused similarly punched the very intoxicated and therefore vulnerable victim twice, causing him to fall with some force and hit his head on the cement.

Because of the accused’s sincere expression of remorse, her prospects for rehabilitation and the significant Gladue factors which mitigated her sentence, ACJ Krahn sentenced her to 18 months jail and two years of supervised probation. [ 94 ] The aggravated assault in Holy Singer involved four stab wounds to critical parts of the victim’s body, causing serious injury and consequences. The accused was 23 years old, and had a criminal record involving violence and a lack of commitment to probation, as well as gang membership.

She was Indigenous and the sentencing judge found her moral culpability to be significantly reduced by the Gladue factors affecting her and her family. Ultimately balancing the need for denunciation and deterrence to be expressed, and the accused’s reduced moral culpability and age, the court imposed a sentence of 28 months. The judge placed significant reliance on the appellate decision of R. v. Okimaw , 2016 ABCA 246 , where the Alberta Court of Appeal substituted 21 months for the 30 months that had been imposed by the sentencing judge.

In Okimaw , the accused had punched and then stabbed a stranger eight times outside a liquor store after an argument. He was 27 years of age with a record that included three weapons offences. He was intoxicated, a drug addict and alcoholic. He was diagnosed with ADHD, FASD, and suffered from Post-Traumatic Stress Disorder (PTSD) because of a stabbing he experienced. He suffered many of the same hardships and traumas as Mr. Sumner because of his experience as an Indigenous person in Alberta. He was also a member of a gang. I note in that case that the courts accepted that Mr. Okimaw had acted impulsively.

He had also experienced significant losses and traumas leading up to the attack: he consumed alcohol and drugs after not being able to see his children, one of his sons had died, and his relationship had broken down. He had not slept the night before, nor had he taken his medications. He reacted impulsively to a slight shove from a female patron exiting the store, who called him down for his behaviour toward the liquor store employees. In his state, Mr. Okimaw stabbed her male companion eight times. The prolonged beating by Mr. Sumner demonstrates a higher degree of moral culpability.

The Alberta Court of Appeal found the sentencing judge failed to take the Gladue circumstances into account to reduce the sentence. [ 95 ] The first-time offender in R. v. Kakekagamick , 2005 CarswellOnt 8669 (Ont.S.C.J.) severely beat his wife after she talked to another man. She suffered severe injuries, including broken vertebrae in her neck, fractured ribs and a fractured collar bone, which resulted in long term serious physical and psychological harm. As in this case, the offender delayed calling for medical assistance.

He showed no remorse nor did he take any responsibility for the crime, instead, he continued to minimize and blame the victim. The similarity to Mr. Sumner’s case is the duration and severity of the beating, and the delay in getting medical help, the fact he did not have a criminal record and the extensive Gladue circumstances affecting both offenders. Mr. Sumner has taken responsibility for his actions however. And of course, it is greatly aggravating that the victim in Kakegamick was his domestic partner and mother of his child. He was sentenced to five years. [ 96 ] In R. v.

Gagliardi , 2000 ABCA 137 , the court was dealing with a four-on-one gang beating involving extraordinary and gratuitous violence. The victim suffered devastating brain injuries and would never be able to work again, and years later, needed personal assistance for basic living tasks like walking. The difference is that Mr. Sumner acted alone, he did not have a record and he is an Indigenous person who also suffers from FASD. The seven-year sentence was upheld; there were no mitigating factors noted. In R. v.

Fisher , 2012 CarswellMan 447 (Man.Prov.Ct.) , the offender assaulted the victim and then left him in the mall stairwell unconscious, with a broken nose, swollen face, cigarette burns on his body and choke marks on his neck. The offender had a serious record of violence, including a manslaughter conviction where she received an eight-year sentence. She had been in physically and sexually abusive relationships with men for years and suffered PTSD as a result of childhood traumas. At the time of sentencing she was a model prisoner and taking all programs and counselling being offered.

No Gladue circumstances were considered in the case. 2. Aggravating and Mitigating Circumstances [ 97 ] I have already discussed many of the aggravating features of the offences, but will repeat the key ones : • Racism in the housebreak and enter • Knew the house was occupied • Children present • The aggravated assault was gang-related • He was on bail at the time • The extreme and gratuitous violence of the aggravated assault • Withholding medical attention for hours and hours

• Filming it • Posting it • Commenting on it, including defending it [ 98 ] There are several mitigating circumstances as well: • Guilty plea • Some insight • Remorse • Letter expressing remorse • His FASD/ODD/ADHD and apparent reactive attachment disorder • His age • His lack of record [ 99 ] Although he has not been involved in programing while on remand status, he has expressed his remorse, insight and remains forward-looking. He sent his father an unsolicited letter in November, apologizing for being a failure.

APPLICATION OF SENTENCING PRINCIPLES FOR INDIGENOUS PEOPLE IN THIS CASE: RESTORATIVE PRINCIPLES [ 100 ] I have already outlined the seriousness of these offences. As for Mr. Sumner’s moral culpability in them, I am satisfied that it was high for the aggravated assault, but can only be fully understood and appreciated by taking into consideration his circumstances as an Indigenous person and his FASD and mental health diagnoses. The gang lifestyle he adopted is demonstrated by both offences, more particularly the aggravated assault.

His deteriorating behaviour in his late teens as drifting into drugs, crime and a gang lifestyle were prescient. [ 101 ] The second part of the analysis required by s. 718.2(

e) and explained by the Supreme Court in Ipeelee is to consider what type of sanctions are appropriate, in terms of their effectiveness. Sentencing judges are directed to craft sentences in a manner that is meaningful to Indigenous peoples ( Ipeelee at paras. 74 and 75 ). [ 102 ] In its treatment of Mr. Ipeelee and Mr. Ladue in Ipeelee , the effectiveness of the sentence was forefront in the mind of the Supreme Court.

Justice LeBel discussed both men’s addictions and how a shorter jail sentence would allow a sufficient period of time of sobriety for them to get back on track and for correctional staff in a provincial setting sufficient time to find an appropriate community placement (see paras. 93 and 96). [ 103 ] Mr. Sumner’s parents and his aunt all suggested the type of programming and support that Mr.

Sumner needs, and what is available to him, both to the PSR writer and to the Court at the FASD sentencing hearing: • Adult services, like Provincial Alternative Support Services (PASS); he has the ongoing support of the FASD Justice Program to assist in making this referral, and to help him with other programming and supports in the community • Re-establishing a relationship with his infant daughter • Attending counselling • Addictions treatment; his family has discussed Alcoholic Anonymous (AA) and Narcotics Anonymous (NA) with him. [ 104 ] He has support in St. Pierre. Mr.

Vincent told the court that not only does he have their support, but also he has the support of the whole community. His family will assist in finding Mr. Sumner a place to live in that town. They strongly suggest he not live in Winnipeg. I would agree that the rural setting where he has done very well in the past, with family support, would be far better for Mr. Sumner and for the protection of the public, than a return to Winnipeg, where he was involved in drugs, a gang and violent crime. [ 105 ] He identified a need for anger management counselling and counselling generally.

He also intends to reach out to the Centre for Aboriginal Human Resource Development, Inc. (CAHRD) to inquire about attending their community campus to obtain the last two credits to graduate from high school. [ 106 ] It is essential that the offender have some prospects for rehabilitation in order for a restorative sentence to be considered. Mr. Sumner has some prospects, but they are limited at this point and require further development before he can safely be released into the community. There is no complete plan nor demonstrated behaviour yet. I contrast this to the case of one of the co-accused in R. v.

Vermette , 2001 MBCA 64 , Kevin Cook. In that case, several members of the Manitoba Warriors, including the leadership, had pleaded guilty to conspiracy to traffic in cocaine. They appealed their sentences to the Manitoba Court of Appeal, who reduced Mr. Cook’s sentence on appeal largely because of the specific restorative plan which was proposed to the court. [ 107 ] The Crown is seeking a sentence of eight years, reduced for totality to six years. Mr. Sumner has spent the equivalent of over two and one half years in custody.

He would have approximately three and one half years remaining, and that would be in a federal penitentiary.

[ 108 ] The Defence is seeking a sentence of two and one half years. Mr. Sumner would be immediately released in that scenario. [ 109 ] At this time, there is no firm plan in place. I do not know where he would live. He is not going to a healing centre outside Winnipeg. He is not entering a residential treatment centre. The plan is loose. [ 110 ] I have before me a young man who was living the gang lifestyle on the streets of Winnipeg. He has deep-rooted anger that must be healed.

And he has challenges beyond that because of his history and his FASD. [ 111 ] Protection of the community, which goes hand in hand with his rehabilitation, remains the key sentencing objective in this case. SENTENCE [ 112 ] The sentence on the break and enter commit assault will be 18 months. It is reduced below the two-year low end of the range because of Mr.

Sumner’s age, his lack of record, his FASD and other diagnoses which impacted on his moral culpability and the Gladue circumstances that led him to the lifestyle he was living at the time. [ 113 ] The degree of violence and high moral culpability demonstrated by the aggravated assault violate all normative behaviour, even among the peers who commented about the assault on Facebook. The sentence must condemn the conduct. The video is chilling. And yet, it is not difficult to ascertain how the FASD operated to mitigate his moral culpability in this case.

Additionally, I must take into account the Gladue factors that placed him there, and how he was unable to regulate or moderate his anger in any fashion when he became angry at a friend and fellow gang member who he thought needed to be taught a lesson. The “temper tantrum” behaviour described by his father when he was a child was evident in the beating – it demonstrates that he was stuck in the “loop” of his anger at the victim.

The degree of violence used however is extremely concerning from a public safety perspective. [ 114 ] This case falls somewhere between Gagliardi , a four-on-one gang beating past unconsciousness, where the Alberta Court of Appeal imposed a sentence of seven years, and Okimaw , a stabbing that exceeded what could be described as an impulsive action by an Indigenous man with a record of weapons, who also suffered from FASD, where the same Court of Appeal imposed a sentence of 21 months. [ 115 ] The sentence on the aggravated assault will be four years. [ 116 ] That is a total of five and one half years. [ 117 ] The overall sentence will be reduced to four years, in order not to crush Mr.

Sumner’s hopes and plans for the future, which might otherwise be crushed when I consider his age and prospects and hope for rehabilitation. The break and enter will be reduced to one year and the aggravated assault will be reduced to three years, leaving a sentence of four years. Expressed in days, that is 1,460 days. [ 118 ] That will be reduced by the time he has spent in custody, which is 668 days credited at time and one half to 1,002 days.

His remaining custodial sentence is 458 days, or about one and a quarter years, approximately 15 months. [ 119 ] His custodial sentence will be followed by a three-year supervised probation order with the following conditions in addition to the statutory requirements: • Report to your probation officer immediately upon your release from jail and thereafter as required by them; • Participate in any assessment, counselling and programming as recommended by your probation officer, including substance abuse treatment and programming and anger management; • Possess no weapons; • Abstain from alcohol and non-prescribed drugs [ 120 ] The following ancillary orders are also made: •

Section 109 10-year weapons prohibition •

Section 487.051(1) DNA order • Forfeiture of the hatchet found in his backpack. [ 121 ] The victim surcharge is waived, as Mr. Sumner still has considerable time to spend in jail and no employment history that would guarantee an early return to employment income. DEVINE, P.J.