R. v. J.E.R. Date:, 2012 BCPC 103

Citation: R. v. J.E.R. Date: 20120302 2012 BCPC 0103 File No: 74949-1 Registry: New Westminster IN THE PROVINCIAL COURT OF BRITISH COLUMBIA REGINA v. J.E.R. ORAL REASONS FOR SENTENCE OF THE HONOURABLE JUDGE DYER Counsel for the Crown: J.C. MacRae & R. Antonuk Counsel for the Accused: P. Fullerton Place of Hearing: New Westminster , B.C.

Date of Hearing: December 28, 2011 Date of Judgment: March 2, 2012 [ 1 ] THE COURT: On November 2nd, 2011, following a trial I convicted the accused of the charge before the Court, namely, an aggravated assault on one D.B. on August 24th, 2010, contrary to the provisions of s. 268(2) of the Code . [ 2 ] On August 24th, 2010, Mr. B. was aged 16 or 17 and the accused was aged approximately 18-and-a-half years. [ 3 ] On the evening in question, Mr.

B., who was then living with his mother in the Queensborough area of New Westminster, had gone to a local park with three friends, arriving between 10:00 and 11:00 o'clock p.m. They drank some beer sitting at a park bench. [ 4 ] At around midnight, an older male stranger whom he believed was called Mark, arrived at the park and asked Mr. B. if he had any cigarette paper so they could all smoke some marihuana he had. B. went home and got some and returned. He, Mark and a friend then smoked two joints. [ 5 ] They saw three girls arrive about 1:00 o'clock a.m. and shortly Mark, Mr.

B., and a friend went over to talk with them. One of the two girls said Mark was the guy from the Island and that he had killed two of their friends. Mark is said to have denied this. [ 6 ] Shortly thereafter, the accused and his cousin arrived at the park and joined the group. As a result apparently at what one of the three girls said to the accused, Mark ran off and the accused pursued him with his cousin in a motor vehicle, however unsuccessfully.

[ 7 ] The accused then returned and demanded that Mr. B. and/or his friend tell him where Mark lived, threatening to throw them in the truck of their car if he did not. B. said he did not know. Then the accused hit him on the left side of his head a couple of times with something he had, he did not know what, but guessed it was a baseball bat because it was hard. Mr. B. was able, by raising his arm, to deflect a few shots with his arm. [ 8 ] Mr. B. was able to get home on his bike. He went to bed.

He awoke some time later throwing up and was taken to the Royal Columbian Hospital where emergency brain surgery was performed on admission on August 24th to evacuate a left parietal epidural hematoma. He was hospitalized for some six days and released home to his mother on August 29th. [ 9 ] The emergency surgery involved making a large incision in his scalp and penetrating the bone of his skull to expose the hematoma. His prognosis was expected to be good on discharge according to the surgeon's post-operative report.

Regrettably, this opinion seems not to have been borne out in light of subsequent events disclosed in a victim impact statement prepared for Mr. B by one B.G. a family friend. I understand she helped prepare this document on behalf of Mr. B. because he was not able to do it himself. [ 10 ] The victim impact statement provides in substantial part as follows under the heading "Physical Impact" it states in part: Physical Impact One week in hospital on many drugs, medications and hospital Tylenol No. 3 for pain. Upon release from hospital, severe pain for two to three weeks at home.

Some drooping of left side of face and eye. Continuing doctor and specialist appointments for ongoing loss of eyesight in left eye. [ 11 ] I understood his mother at the sentencing hearing to suggest her son is not blind in his left eye, but rather his eyesight is compromised and may worsen. [ 12 ] Other comments made in his victim impact statement include: I want no contact with the accused. I am scared for myself and my family. I am not the same person anymore. I have no direction and little incentive. I suffer from depression and do not sleep well. I do not trust people, even friends sometimes.

I consume alcohol and smoke marihuana to try and forget all this has happened. Many people in my community want justice for this crime and some had to be asked not to take matters into their own hands. They care about our family. [ 13 ] Mr. B. described the immediate effect of this matter on him and its effect one year later in September 2011 as follows: I was very scared at home thinking whoever did this was still out there and would come after me again. I began sleeping with a baseball bat for protection should anything happen. As I recovered, I was scared to leave my home without a weapon.

I did not go out much at all. I was sad and felt like I was not safe in my own neighbourhood of 18 years. All the innocence was gone. I started to look at people differently, even my long-term friends. I didn't know who to trust and disconnected myself. I fought a lot with my sisters and other family members. I felt inadequate and retarded. I became depressed and detached. I tried to go back to school two months into the school year but could not concentrate. I couldn't really understand questions or comments and was very frustrated trying to respond to people in situations.

I was worried about the people who did this coming to get me at school. I became more depressed and temperamental, continuing to fight with my family. I know they were trying to help me but I felt mentally handicapped like I just couldn't get it. I am just not the same. I am now very afraid of losing the sight in my left eye as it has been getting worse and worse. I am unable to participate in almost all of the sports and recreational things I used to do such as riding my bike, skateboarding, trampolining, etc. What if I reinjure myself, will I die this time? What kind of work will I be able to do?

What kind of education will I have if I can't comprehend school? How is my life going to play out now? Can I be comfortable in public or will I always be waiting for another attack from a stranger? It has been very hard to write this statement. It required me to go back and re-live all that has happened to me and my family. Signed: D.B. [ 14 ] Mr. B. and his mother provided further input to Ms. Zimick for purposes of her pre-sentence report following her telephone interviews with each in the fall of 2011. Ms.

Zimick says this in her report at p. 5: D.B. and his mother, C.B., were contacted for the purposes of this report although C. states a victim impact statement is on file. D. advises that this incident has greatly impacted his life and he is no longer the person he used to be. He states he spent a week in hospital due to his injuries and now suffers from headaches on a regular basis. D. indicates and C. confirms that his short-term memory has been affected as he no longer retains information like he used to. D. indicates he no longer is a social as he used to be and feels like he cannot work.

D. indicates he now has a learning disability due to the brain injury he sustained. Ms. B. states this incident has impacted the entire family. D. quit school after the incident and has not been able to return full-time since that time. She states D. often comments on how he is mentally handicapped now and feels "I'm retarded". She feels she is having to get to know her son again as he is no longer the same person. Ms. B. states D. is currently applying for persons with disability as a result of this attack.

He feels this incident has wrecked her son's life and the community in Queensborough is outraged about this attack. [ 15 ] In the result, Mr. B. now aged 19, is left with reasonably serious and long-standing injuries, both psychological or emotional and physical. Mr. B. seems to have long-term concerns over his ability to continue in any form of schooling and his ability to work in future. [ 16 ] There is no suggestion made before me that these were problem areas for him on August 23rd, 2010 prior to the attack.

Thereafter his life changed dramatically and permanently for the worse. [ 17 ] On its face, the assault in issue would seem to be a senseless act of extreme and gratuitous violence committed by a very much bigger person on a very much smaller and essentially defenceless person who is a complete stranger to the accused for no good reason.

[ 18 ] A possible reason emerged in the evidence of the accused's foster mother, one Mrs. Garrett, who testified at trial and whose evidence I accept as truthful. She says that later on the morning of August 24th, the accused and his girlfriend came home and he then told her that he and his cousin put someone down on the ground a couple of times the night before, that they had punched him, but that it was the wrong guy they meant to hit. They thought they were going after the person that gave two girls some drugs that they had OD'd on.

The two girls were said to be friends of friends of the accused who knew the two deceased girls. [ 19 ] The accused told his foster mother that a lot of his friends who were with him were yelling at him to stop and in essence he had the wrong person. Mrs. Garrett understood that the guy taken down was a case of mistaken identity and that the guy they were after they had chased but did not catch. It is also clear from her trial evidence that the person Mr.

R. had chased unsuccessfully was the one he told her he had intentionally gone after. [ 20 ] The reason for the assault might be seen to emerge from the foster mother's evidence as a result of what the accused said to her within hours of the assault -- an intentional act of revenge or vigilantism sadly perpetrated on the wrong person, an innocent random teenager caught in the wrong place at the wrong time. It was to some extent a planned and premeditated act but not of the victim in question. [ 21 ] There was no clear evidence at trial that alcohol was involved. Mrs.

Garrett said she did not feel when she spoke to the accused later on the morning of August 24th that he was then impaired. He did not then look like he had consumed alcohol. [ 22 ] Mr. R., however, advised Dr. Stangland who interviewed him on November 29th, 2011 preparatory to writing a report dated December 22nd, 2011 outlining his results of a psychological assessment, that he could not recall what happened on August 24th, 2010.

He said he was intoxicated on the night in question and agreed that night he might have stolen a car; something he used to do a lot. [ 23 ] He could not recall looking for a person on the night of the assault but agreed he was earlier looking for this person because the person had given drugs to two girls who had overdosed. He said he did not know what this person looked like.

He could not recall chasing him on the evening in question but then said they knew they had found the right person because the man had run when he heard the accused's name. [ 24 ] This position seems somewhat hard to accept in light of what he told Mrs. Garrett later in the morning in question and her assessment of his sobriety. I do not accept his excuses relating to the events in issue. [ 25 ] Importantly, Mr. R. did express some measure of remorse to Dr. Stangland for what he had done during his interview. This is clearly a mitigating factor.

He said he wished he could take it back. [ 26 ] In his interview with probation officer Jennifer Zimick for purposes of the pre-sentence report, she felt he showed remorse and he told her, "He did feel bad after the incident, but states in the moment he feels nothing". [ 27 ] I turn now to the circumstances of the accused. [ 28 ] He is a First Nations person or Aboriginal and a status member of the Kinonjeoshtegon First Nation in Hodgson, Manitoba. Mr. R. advised Ms.

Zimick who prepared the pre-sentence report that while he did know much about his culture, he was always interested in becoming an Aboriginal dancer. He is interested in pow-wows and sweats. Ultimately, he would like to marry an Aboriginal woman to keep his spirituality alive. He expressed to Ms. Zimick that the Aboriginal cultural approach to healing may be helpful. He seems not to have indicated to her what this entails or his understanding of it. [ 29 ] His First Nation Band in Winnipeg is said to have limited funding. Mr.

R.’s previous social worker, one Holly Anderson, apparently unsuccessfully attempted to arrange resources for him through his First Nation in Manitoba. He has not been in active contact with his First Nation in Manitoba or its community. [ 30 ] Mr. R. is the youngest of four children. He was born in Winnipeg. His parents separated just prior to his birth. Mr. R. understands that both were part of the residential school system. [ 31 ] Mr. R. understands that his mother, V., was taken and sold as an orphan into the United States and only returned to Canada at approximately her age 18.

She is Aboriginal, one of 13 children, and being a member of the Tootinaowaziibeeng Band. Her parents were alcoholics and violent. Her mom was taken into care at her age two. [ 32 ] It is believed V. and her sister were placed in adoption in the United States at V.'s age five. They were physically abused in this adoptive home. The parents divorced, and V. and her sister were again placed in foster care and at V.'s age 12, adopted a second time and over the next one-and-a-half years were exposed to emotional and mental abuse.

Thereafter, V. and her sister were separated and V. lived in several group homes where in one she was sexually molested. [ 33 ] V. returned to her biological mom at age 16 and gave birth to Mr. R's brother, J., at her age 17, and moved out at age 18. [ 34 ] Mr. R. lived with his mother initially in Winnipeg. His mother and family then moved to Calgary and then on to Vancouver. The Calgary move was when he was an infant of seven months or so. The Vancouver move in August 1994 was when Mr. R. was about age two. The father prior to separation used drugs and alcohol and abused the mother V. [ 35 ] At age five, Mr.

R. was placed in foster care apparently by reason of concerns over poor supervision and allegations of sexual abuse amongst the children. His mother visited him sporadically at the outset when he was in care, but sometimes he felt she would forget. Both his parents regularly abused alcohol. [ 36 ] Mr. R. believes he was in as many as 30 to 50 foster homes during his lifetime due to his difficult and defiant behaviour. Holly Anderson confirmed the total number of foster care placements was closer to some 62.

[ 37 ] He felt most foster homes were sensitive to his cultural heritage and that some attempted to incorporate Aboriginal practices into his foster environment. He believed he suffered racism due to his heritage. When in foster care in the Musqueam territory in Vancouver, he was often bullied for being an outsider. [ 38 ] It would appear Mr. R. did not ever live with his mother after age three-and-a-half when he entered foster care in Vancouver. She now lives in the West End in Vancouver with a common law spouse. Mr. R. last saw his mother in or about April 2011 for one hour. He told Dr.

Stangland that he felt his mother wanted to have a relationship with him but frequently became angry with him for some small things. [ 39 ] Mr. R.'s father, J., now lives in downtown Vancouver, but his son, the accused before the Court, did not know what he did working in some form of industrial capacity. He does not have much contact with his dad. He reported seeing him between twice per month to once every five months. When he asks to hang out with his dad, he learns his dad is usually busy, but he does call his son sometimes. Mr. R. does not know if his dad wants to have a relationship with him.

His dad, and to a lesser extent his mother, have stopped drinking now in his understanding. [ 40 ] Mr. R.'s dad is also a member of a First Nation, one of four children, and himself in and out of foster care and adopted by a U.S. family with whom he stayed to his age 12. He was then said to be in a detention centre to his age 18. [ 41 ] The accused has four siblings. He has a half-brother, J., age 24, living in Vancouver. Mr. R. sees him sometimes but he is always busy and has little time to spend with Mr. R. [ 42 ] J., age 22, is Mr. R.'s sister. She lives in Vancouver but Mr.

R. says he does not know a lot about her. There is no evidence of any recent visit with this sister. [ 43 ] J., age 21, lives in Surrey. She is the only sibling the accused says he feels close to. He feels she likes him and he tries to help her as much as he can. [ 44 ] C., age 24, is an adopted brother who lives with his mother. [ 45 ] All of the above four children, according to the social workers or records reviewed by Dr. Stangland, historically had problems with drugs and/or alcohol. [ 46 ] It would appear that Mr.

R. does not have very strong support groups available to him in the community including family members. This community is essentially the Lower Mainland area of this Province. Nor does he have any currently strong connection to his Band or First Nation in Manitoba. [ 47 ] Quite disturbingly, Mr. R. advised Dr. Stangland that he could easily be used by others to commit criminal acts, particularly when he has first been gotten into an intoxicated state by these others. For example, he could not say if someone told him to hit Mr. B., but stated that is what usually happens because he was a big guy.

Negative friends on the street were inclined to use him as a "heavy". This seems most often to occur when he has been drinking first, usually to excess. [ 48 ] Catherine Morrison, a social worker with Youth Forensic Psychiatric Services, advised Dr. Stangland that she had some concern that Mr. R.'s mother, V.B., had used alcohol prior to his birth but also indicated that V. had denied doing so.

There is some confusing historical evidence on point with V. variously admitting then denying alcohol use during the time she carried J. in utero . [ 49 ] In November 2006, Catherine Morrison of Youth Forensic Psychiatric Services prepared a report stating in part that it was then suspected that when younger, Mr.

R. was sexually abused by his older brother and had been identified as having possible Fetal Alcohol Spectrum Disorder ("FASD") and ADHD. [ 50 ] At his age five in 1997, he underwent a psychological assessment at Sunny Hill Health Centre, and on testing the conclusions reached on this assessment were that he then had findings suggestive of partial FASD including a short attention span, impulsive response style, distractibility and restlessness. [ 51 ] On a later 2008 assessment and testing at his age 16 at the Asante Centre, a diagnosis of FASD was then rejected both because his mother then apparently denied drinking during her pregnancy and as well because there was no indication of growth deficits.

There were as well other possible causes for his assessment results including his own drug and alcohol use. [ 52 ] Testing done on Dr. Stangman's behalf by Ms. Murray, a psychological assistant, on November 25th, 2011 while of questionable validity, in some cases did suggest he presented as a person with a history of poly substance abuse. [ 53 ] Mr. R. has a very limited work history. He obtained his first job at age 16 working at the PNE. After one month, he was terminated as he came late to work having been drinking the night before.

In 2010, he worked as a landscaper for one week but apparently stopped as he was using drugs. He has done some volunteer work at the SPCA, however, few details have been provided. While on remand he worked for two months as a cleaner and thereafter did work involving sorting and counting screws and nails. Again, no further details are provided. [ 54 ] He has advised Ms. Zimick that he enjoyed the work done while on remand as it kept him busy.

Institutional logs made available to her showed that the accused was a good cleaner and compliant with all tasks he was assigned after he ceased to perform these duties. [ 55 ] Unfortunately, the reports provided to the Court do not suggest that Mr. R. has either the formal education or any real vocational training that would allow him to work at any types of entry level employment in society. However, he feels he is good with his hands but as yet has had no formal training in a job requiring manual dexterity. Mr.

R. has attended 11 different schools, always taking modified programs and to the grade ten or 11 equivalent level.

[ 56 ] For some time, he has had anger management issues that have impacted his success in school and resulted for example in his being involved in violent acts -- bullying -- needing one-on-one and full-time monitoring and often requiring timeouts away from his school work. [ 57 ] The reports disclose that at school he has had trouble paying attention and with hyperactivity. He has experienced difficulty in learning to read and has been diagnosed with learning disability and dyslexia. It is felt that certainly his early difficulties at school including his frustration and defiance were in

part likely due to his early language problems. [ 58 ] In or about March 2006 after he left Alberta, he was enrolled in British Columbia in the West Coast Alternative School part-time in an individualized program for students diagnosed with FASD. His attendance was sporadic, but he said he liked school. To some extent his periods of incarceration have affected his ability to move forward with educational goals. [ 59 ] Mr. R. has a multitude of diagnoses with respect to both psychological and physiological health issues that emerged in the various reports I have reviewed.

He understands he has been diagnosed with diabetes, a condition his father also suffers from. He questions the accuracy of this diagnosis. He does not now use insulin in any form. [ 60 ] He reports suffering head trauma, being hit twice with a bat and being stabbed once in early 2011. He has been hospitalized at Children's Hospital in 2007 or 2008 after a number of suicide attempts and after using crystal meth, sometimes combined with ecstasy as much as he could.

He believes he has been diagnosed with Post Traumatic Stress Disorder and for a while underwent therapy with a psychiatrist at West Coast Mental Health for this condition. He admits to feelings of anxiety and to having a lot of problems with anger control over the years and acknowledges he can when angry act very impulsively and without premeditation. [ 61 ] Dr. Stangland's report outlines years of drug use including cocaine, crystal meth, ecstasy and marihuana, and alcohol use since age ten.

As well, from time to time he has taken certain prescribed drugs including Prozac to stabilize his moods and Dexedrine briefly for hyperactivity. [ 62 ] Mr. R. said in early 2011, ten months prior to the December 2011 report, he quit using drugs but admitted to having trouble staying away from alcohol. He has not attended AA meetings since his early teens. Criminal Record [ 63 ] Mr. R.'s criminal history is referred to in both reports now before the Court and comprises both a youth and adult record.

As set out in the pre-sentence report, the majority of the convictions occurred while he was a youth from July 19, 2007 age 15 to November 19th, 2010 age 18-and-a-half and include two serious matters, namely, an assault causing bodily harm June 18th, 2008 and robbery December 23rd, 2008. In addition, he has been convicted on approximately 15 separate occasions for failure to comply with various orders.

No particulars are provided of the orders not complied with. [ 64 ] His only adult conviction is for two counts of possession of stolen property less than $5,000 on March 23rd, 2011 for which he received 25 days in jail and a one-year probation order. Both offences relate to car thefts including I believe the one he drove on the evening of August 24th, 2010. He was about 18-and-a-half years of age when he assaulted Mr. B on August 24th, 2010. I understand that he had been out of custody for one week at that point in time. [ 65 ] The information in Dr. Stangland's report at pp. 14 to 16 dealing with Mr.

R.'s criminal history sets out five earlier youth convictions from September 21st, 2006 to February 13th, 2007, not referred to in the pre-sentence report. The latter three new matters if you will refer to convictions for breaches of Court orders. The first relates to a car theft and the second a breach and car theft as well. [ 66 ] A June 18th, 2008 conviction is said by Dr. Stangland to relate to both an assault with a weapon and assault causing bodily harm. The accused when asked about this CPIC entry told Dr. Stangland he could not recall being charged with such offences.

Likewise he gave the same response when asked about the circumstances of the robbery and added as reported by Dr. Stangland and I quote from his report: He emphasized that he did not commit the crime on his own. He thought that he would have done this when he was intoxicated and that he probably went along with someone else. He was given 180 days of custody and supervision and placed on an intensive support and supervision program for five months. [ 67 ] At the sentencing hearing before me, Crown counsel said the assault had occurred on December 4th, 2007, during which Mr.

R. threw a bottle at the victim, striking him on the left side of his head resulting in a laceration which was later stitched when the victim attended in hospital. [ 68 ] Mr. R. has advised Dr. Stangland and Ms. Zimick that alcohol is often a factor in the crimes he has committed. When asked about the subject offence, he told Dr. Stangland he could not remember what occurred and said he was intoxicated at the time. [ 69 ] This factor and/or drug misuse and mental health in Ms.

Zimick's view are the accused's main criminogenic factors that cause his involvement with the criminal justice system and by my inference lead to his ongoing criminal activity. Her assessment at p. 7 of her pre-sentence report touches upon this issue and the challenges Mr. R. presents to, among others, the criminal justice system. She says this at p. 7 of her report: J.'s response to community supervision remains extremely poor as outlined in the numerous failures to comply convictions and the continuous accumulation of new charges.

In J.'s youth record, he has had his bail revoked on several occasions and had his conditional supervision converted on three occasions. J.'s primary difficulties remain his inability to abstain from alcohol and comply with a curfew. He acknowledges the relationship between alcohol use and curfew stating he has been breaching these conditions for over three years. He comments "I don't know why the courts impose conditions I cannot follow". J. confirms he likely cannot follow a curfew if he is meant to stay at one location.

Notes indicate that J. complies best when he has long-standing community supports he trusts. Even then, Ms. Anderson indicates J. is difficult to manage in the community.

Attitude and Receptiveness to Previous Proposed Interventions J. expresses a willingness to seek assistance although the pattern shows he does not often follow through. J. states his prior now is todetermine what makes him different than most other people and to regular his mental health. He states that he will then have a betterunderstanding why he is so different than most other individuals. Numerous attempts to get J. into treatment centres, community groups,or any other programming have proved to be extremely difficult and/or unsuccessful.

J. states that although he knows he needs theseprograms he states his anxiety gets in the way and he often takes off. He alludes to the idea that if his mental health were regulated, hemay have a better chance following through with programming. Thus far programming in the community appears to be unsuccessful. On a positive note, J. functions well in the custody setting with the rigid boundaries and

schedule in place. Ms. Anderson agrees that J. seems to function quite well in custody centres as he is often popular within peer groups and adapts well tostructure when there are no other options in place. All he does indicate though is that J. is likely developmentally delayed andfunctioning at a level seen in most 14-year-olds. According to institutional logs on December 19th, 2011 J. completed the substanceabuse management course in North Fraser Pre-trial facility.

Attitude and Understanding Regarding Offence J. advises he does not specifically recollect the event of these charges and only knows what he has been told. He does indicate that hedoes not believe a bat was used during this altercation because J. feels the victim would likely not have survived if that was the case. J.did show remorse and indicates he does feel bad after the incident but states in the moment he feels nothing. [70] Of concern to me is the accused's knowledge that he has and can be used a lot by others to do usually unlawful things for them asa "heavy". In the subject offence he reported to Dr.

Stangland that he could not say if someone had told him to hit the victim, Mr. B., butagain said that is usually what happens. In the result, he acknowledges that he can be and is used by others, I assume often afterdrinking, and even though he knows this is occurring, seems capable of assisting in most probably criminal activity, apparently for thebenefit of others. He is aware that when he is intoxicated he is easily influenced by others and often gets himself into trouble. When hestarts drinking, he cannot stop. He so advised Ms. Zimick when she interviewed him (see p. 5 of her report).

Presence of Mitigating and Aggravating Factors [71] There are certain mitigating factors in this case which I have considered as follows: 1. The age of the accused. He is now almost 20 years of age and was about 18-and-a-half years of age when the offence in issuewas committed. 2. He has expressed some remorse for what he has done. He wishes he could take back what he has done although this isqualified with his assertion he does not really remember the event or what happened, and seems to think he did not hit Mr. B. with a batbecause he feels the victim would likely not have survived it if this were the case.

When one reflects on this assertion, it is of course ofgreat concern because it might be seen to indicate an awareness on the part of Mr. R. of what he is capable of doing, particularly ifintoxicated. However, whatever that might be, he did not do it on August 24th, 2010. 3. An expressed substantial interest in trying to make changes within his life and an acknowledgement of his important problemsand a realization he needs help with them. One major problem is his inability to avoid abusing alcohol. Mr. R. has certainly suggested toMs. Zimick and Dr.

Stangland that he was intoxicated on the evening in question. [72] I share the views expressed by Kirkpatrick J.A. in R. v. Craig, 2005 BCCA 484 , [2005] B.C.J. No. 2180 at para. 15quoted by de Couto P.C.J. in para. 72 of R. v. Sleigh, 2008 BCPC 394 as follows: [72] In considering this explanation, the remarks of Madam Justice Kirkpatrick in Craig, supra, are in my view appropriate. Shestated in para. 15 of her decision: [15] I am not persuaded that the respondent's intoxication is a significant mitigating factor. He had been drinking to excess but that didnot cause him to do what he did.

It may have reduced his inhibitions, but it did not reduce his moral blameworthiness for his violentattack and the injuries he caused to the victim. [73] As I have said above, I have my suspicions as to the true extent the accused may have been drinking on the night in question. [74] The aggravating factors I have considered in this case are as follows: 1. Mr. R. used a weapon to commit the assault. 2. The assault was brutal and unprovoked. 3. There is some suggestion that on August 24th, 2010 Mr. R. was looking for a guy who people told him had sold drugs to twogirls who had overdosed and died.

This suggests there was some degree of planning or premeditation with respect to the assault butlikely not to a significant degree. As I have said above, there is no suggestion that the assault can be said to have been a premeditatedevent as far as the ultimate victim was concerned, Mr. B.. 4. The offence involved an element of vigilantism. 5. The vulnerability of the victim, Mr. B. The victim is substantially smaller than the accused, however there is no evidenceMr. R. either sought out Mr.

B. or struck him because of the disparity in their sizes, for example, in the way a purse snatcher might seekto prey on little old ladies. He was nonetheless essentially a defenceless young person who under all the circumstances had littleopportunity to defend himself at the time in question.

6. Mr. B. was quite seriously injured and may well have material deficits and limitations following the blow or blows to his head for the remainder of his lifetime. Risk to Re-offend [ 75 ] As I have said, Mr. R. was earlier tested on November 25th, 2011 by Ashley Murray, Dr. Stangland's psychological assistant, and she completed a psychopathy checklist called an HCR-20 with the information obtained. This checklist is described to be a rating scale for the presence of characteristics which have been found to be typical of those individuals who are most chronically involved in crime. Overall, Mr.

R. scored in the moderate range of risk to re-offend. The test measures two factors: 1. Personality traits that have been found to relate to criminal lifestyle. Mr. R. had a moderate score here. 2. Whether the person has an unstable and anti-social lifestyle. Mr. R. had a high score here. [ 76 ] Important findings in this assessment, all 20 of which risk factors I have considered, are no indication of active symptoms of a major mental illness when Mr.

R. was assessed, but as to his lack of responsiveness to treatment, the finding was that this was absent with this caveat : J. gives the impression of being quite receptive to treatment but his cognitive difficulties form a major barrier to him benefitting from treatment. [ 77 ] In the result, the testing would seem to suggest he is or would be responsive to treatment but as to prospects of his compliance with remediation attempts, the results obtained suggest this is possible but that it would appear that any rehabilitation program would have to be tailored to Mr. R.'s cognitive limitations. [ 78 ] Dr.

Stangland opines that there are some 18 factors evident in Mr.

R.'s background that militate towards a higher risk of violence including challenges he will face in managing regular employment, the fact that he best manages abstinence from illicit drugs and alcohol while in custody, his history of numerous breaches of court supervision orders, his lack of insight into his limitations, his impulsivity, his lack of a future plan, his vulnerability to being used by others for anti-social purposes "other people often use him to carry out aggressive acts when he is intoxicated", a matter which I have already commented upon above several times, and lastly existing psychological disorders.

This factor is described by Dr. Stangland at item 6 in his report as follows: 6. He has a number of serious psychological disorders including a neuro-developmental cognitive disorder, probably Fetal Alcohol Spectrum Disorder, a personality disorder with prominent borderline characteristics, and Post-Traumatic Stress Disorder. [ 79 ] Dr. Stangland however notes all of these positive risk factors are counter-balanced with some protective factors being that: 1. He was not when tested and interviewed presenting any symptoms of mental illness and 2.

Expressed an interest in receiving treatment services. [ 80 ] Nonetheless he concludes using a risk assessment rating system described at some length in his report that "One must conclude that J. presents a high risk for violent behaviour" (at p. 28 of his report). [ 81 ] His concluding remarks at p. 29 therein also bear on Mr.

R.'s risk to re-offend and he says this: Lastly, I would emphasize that J. poses a considerable risk to the community if his situation is not well managed and recommend that any community supervision order be one that is lengthy and that would allow for immediate intervention if he were engaging in high risk behaviour. This can only be managed effectively if he is kept on a tight rein. If close supervision is not maintained, he will be at high risk to fall back into substance abuse and to engage in risky and violent behaviour. Recommendations of Dr. Stangland and Ms.

Zimick re Sentence [ 82 ] Each author has commented on this point. Ms. Zimick as part of her pre-sentence report work-up contacted one Holly Anderson, who appears to be the social worker who has had the longest standing relationship with Mr. R. She described Mr. R. in general terms to Ms. Zimick at p. 4 of her report as follows: Ms. Anderson describes J. as an incredibly complex adolescent whose developmental disabilities, coupled with a history of early childhood abuse and a strong presentation of addiction make planning very difficult.

In his adolescence, J.'s mental health including violent ideation, suicide ideation, and scattered chaotic thinking has dominated his behaviour. Ms. Anderson went on to say that it is extremely difficult to manage J.'s behaviour in the community and states he is chronically out of control. She feels the transition into the adult correctional system will be difficult as J. needs a lot of structure and guidance, something the adult system cannot provide. [ 83 ] I will return to her conditions later in these reasons. [ 84 ] Dr.

Stangland's recommendation is as follows at pp. 28 and 29 of his report: In terms of rehabilitation, effective management of J.'s risk to himself and the community would be a complex process. He is an individual who has limited capacity to plan, regulate and control his behaviour. He will function best where there is strong external structure that is tempered with a nurturing approach. It is evident that J. has functioned best when he has been provided with strong, consistent, external structure and when those who are dealing with him are able to form lasting relationships with him.

This is much easier to accomplish within the youth justice system than in the adult system. The intensive support and supervision program of the youth justice system is the type of program that is needed. The only comparable programs in the adult system are assertive case management programs such as what he seems to have been involved in for a period of time with Mental Health Services. J. cannot be expected to live independently without supervision and to consistently make constructive pro-social decisions. He seems to be motivated

to avoid substance abuse and criminal behaviour at this time but he is highly vulnerable to the influence of those around him. As hisbeen demonstrated in the current situation, he is capable of some very dangerous and destructive behaviour. Probationary conditions thatwould help to control his behaviour would be a curfew, red zone restrictions, non-association clauses, abstinence from drugs and alcoholand reside as directed conditions. A specialized program that addresses his needs can be found or created and he should be directed toparticipate.

With regard to treatment, J.'s cognitive limitations will make verbal psychotherapy a difficult and probably non-productive process. Hemight benefit from expressing some of his emotional conflicts and issues but it is unlikely that he would be able to take something helearned in therapy and applied to his life in the community. His bigger issues involve anger management and learning to control hisimpulsivity. Therapy would need to be more of a hands-on process with lots of opportunities to practice skills under supervision. Mostof the anger management programs that are available would not be suitable for him.

Psychiatric involvement is recommended given theintensity of J.'s emotional conflicts and problems and his history of drug-related psychotic symptoms, it would be a good idea for him tohave ongoing contact with a psychiatrist so that it can be determined if and when medications might be important. Ideally, psychiatricsupervision might also form the anchor, the source of planning and supervision for other treatment interventions such as drug and alcoholtreatment, behavioural management training and assertive case management. Case Law [85] Crown submitted the following nine cases at the sentencing hearing: 1. R. v.

Johnson, [1998] B.C.J. No. 2924 (B.C.C.A.) 2. R. v. Lennon, 2002 BCSC 1015, Baker J. 3. R. v. Willier, 2004 CarswellBC 3441 4. R. v. Johnson, 2004 BCSC 1310, Barrow J. 5. R. v. A.J., 2006 BCPC 625, Bagnall P.C.J. 6. R. v. N.A.D., 2006 BCPC 309, de Couto P.C.J. 7. R. v. Haj-Ahmed, 2007 BCCA 143 8. R. v. Sleigh, 2008 BCPC 394, de Couto P.C.J. 9. R. v. Green, 2009 BCPC 359, Brecknell P.C.J. [86] Defence submitted these following cases, eight in number: 1. R. v. C.R.E., [2006] B.C.J. No. 517 2. R. v. Chickekoo, 2008 ONCA 488 3. R. v. Mitchell, 2009 NWTSC 52 4. R. v. Dantimo, 5. R. v. Fobister, 6. R. v.

MacDonald, 2010 ONCA 178 , [2010] O.J. No. 912 (Ont. C.A.) 7. R. v. Nehass, 2010 YKTC 64 8. R. v. Peters, 2010 ONCA 30 [87] These cases, all of which I have reviewed, refer to certain established principles that apply in my sentencing of this accused as doss. 718 to 718.2 of the Criminal Code of Canada. [88]

Section 718.2(

e) is particularly relevant. It provides as follows: (

e) all available sanctions other than imprisonment that are reasonable in the circumstances should be considered for all offenders,with particular attention to the circumstances of Aboriginal offenders. [89] Mr. R.'s circumstances include in my view the fact that he may well be an alcoholic and whether or not he is, that he commitsserious criminal offences when he has been drinking, often at the behest of others. Being drunk of course is not an excuse for criminalactivity. [90] I find the relevant sentencing principles that emerge from these various cases with respect to the case at bar are as follows: 1.

Denunciation: a sentence must communicate society's condemnation of the particular offender's conduct. 2. General deterrence: the need for the Court to deter others from like misconduct by the sentence imposed. 3. Specific deterrence: the need to prevent the accused from repeating criminal activity by providing a meaningful consequence for

what he has done. 4. Rehabilitation: the need to assist Mr. R. to find and take a new non-violent path in life. [91] The range of sentence that emerges from these various cases is referred to Baker J. in Lennon, supra, at para. 7 following theJohnson, supra, decision in our Court of Appeal at para. 10 as follows: [7] In R. v. Johnson, for example, the Court of Appeal said the range of sentence for aggravated assault is broad.

At page 4 theCourt said: Counsel referred us to numerous authorities of this Court which indicate that the range of sentence for similar offences is broad, and liesbetween 16 months' and six years' imprisonment. Sentences at the lower end of the range tend to be imposed in "fight" situations inwhich the altercation escalates and results in injuries to the victim.

Sentences at the higher end of the range tend to be imposed insituations where the victims are attacked with a weapon, without provocation and without any opportunity to defend themselves. [92] Johnson, supra, was as well followed by our Court of Appeal in Haj-Ahmed, supra, at para. 21 on the question of an appropriaterange in a case like this. [93] In R. v.

Craig, supra, Madam Justice Kirkpatrick of our Court of Appeal after citing a number of cases said this at para. 10 aboutthe appropriate range in a case of aggravated assault: [10] It is not disputed, and it appears clear on the cases, that a sentence of two years' imprisonment for the commission of aggravatedassault (which is the sentence that was effectively imposed by the judge) is at the low end of the range of sentences imposed on similaroffenders in similar circumstances [citations omitted]. The range of sentence for similar offences was described as being between 16months and six years ….

In determining an appropriate sentence within this broad range, an unprovoked attack with a weapon tends toresult in the imposition of a sentence at the higher end while a consensual fight that has escalated with resulting injury tends to result in asentence at the lower end. [94] These cases, while the facts differ, do set out the principles in play and are of course useful in providing guidance to this Court indetermining a fit and just sentence bearing in mind that the overarching duty of a sentencing judge is to draw upon all legitimateprinciples to determine a just and appropriate sentence which reflects the gravity of the offence committed and the moralblameworthiness of the offender (see R. v.

M.C.A. (1996), (SCC), 105 C.C.C. (3d) 327 at 368). [95] I also bear in mind the comments of Smith J.A. in R. v. W.N.C., 2005 BCCA 346 at para. 17 that in a sentencing hearing: Each case must be assessed on its particular facts and that it is not a useful exercise to list and compare between cases the discreteaggravating and mitigating factors and to assign a sentence based on the presence or absence of one or more of them. Gladue Factors [96] I have considered and reviewed the following cases, none of which were provided by counsel which deal with the principlesinvolved in sentencing Aboriginal offenders: 1.

R. v. Gladue, (SCC), [1999] S.C.J. No. 19 2. R. v. Wells, 2000 SCC 10 3. R. v. Kakekagamick (2006), (ON CA), 81 O.R. (3d) 664 (Ont. C.A.) 4. R. v. Collins, 2011 ONCA 182 5. R. v. Napesis, 2010 BCCA 499 6. R. v. D.W.J., 2012 BCPC 15, a quite recent sentencing judgment of Associate Chief Judge Brecknell of this Court in a casewhereby an accused Aboriginal had pleaded guilty to five counts of breach of probation and one count of shoplifting. [97] In D.W.J., supra, Brecknell A.C.J. Prov. Ct. provides a very helpful

summary of some of the important sentencing principles thatemerge from the leading sentencing authorities for Aboriginal offenders including, among other cases, Gladue, supra, and Wells, supra,at paras. 83 and 84 of his reasons as follows: [83] In reviewing the cases provided it is clear that the Supreme Court of Canada and our Court of Appeal have directed sentencingjudges to consider the unique circumstances of Aboriginal offenders as originally set forth in Gladue and the provisions of

section 718.2(

e) of the Criminal Code while at the same time ensuring that appropriate weight is given to the other sentencing principles set out insections 718 through 718.2 if the circumstances of the offender, the offender's criminal history and the offences before the Court warrantit. [84] Some of those sentencing principles for Aboriginal offenders set out in those cases include:

a) The degree to which Gladue considerations apply depend on the individual circumstances of the offender in each case [I willleave out the case references];

b) There is no automatic Aboriginal discount of sentence;

c) Restorative justice is an important consideration in sentencing Aboriginal offenders but does not necessarily receive greaterweight than other sentencing principles;

d) Although Gladue mandates a different approach to sentencing Aboriginal offenders it does not direct a different result nor does it preclude the sentencing judge from giving primacy to considerations other than restorative justice if circumstances warrant;

e) In circumstances where an Aboriginal offender demonstrates violent behaviour and consistent recidivism protection of the public and specific deterrence may be given primacy;

f) When an Aboriginal offender has a lengthy record, has shown little success in rehabilitation when given the opportunity to serve community base sentences to address underlying causes of the offending behaviour denunciation, deterrence and protection of the public becomes paramount. [ 98 ] In my view, these principles apply as well in this case, albeit there is an element of significant violence in the case at bar not present in D.W.J. , supra . [ 99 ] In Gladue , supra , Chief Justice Lamer dealt with sentencing for violent offences at paras. 33 and 78-79 of his reasons in the Supreme Court of Canada as follows: [33] In our view, s. 718.2 (

e) is more than simply a re-affirmation of existing sentencing principles. The remedial component of the provision consists not only in the fact that it codifies a principle of sentencing, but, far more importantly, in its direction to sentencing judges to undertake the process of sentencing aboriginal offenders differently, in order to endeavour to achieve a truly fit and proper sentence in the particular case. It should be said that the words of s. 718.2 (

e) do not alter the fundamental duty of the sentencing judge to impose a sentence that is fit for the offence and the offender. For example, as we will discuss below, it will generally be the case as a practical matter that particularly violent and serious offences will result in imprisonment for aboriginal offenders as often as for non- aboriginal offenders. What s. 718.2(

e) does alter is the method of analysis which each sentencing judge must use in determining the nature of a fit sentence for an aboriginal offender. In our view, the scheme of

Part XXIII of the Criminal Code , the context underlying the enactment of s. 718.2(e), and the legislative history of the provision all support an

interpretation of s. 718.2(

e) as having this important remedial purpose. . . . [78] In describing the effect of s. 718.2(

e) in this way, we do not mean to suggest that, as a general practice, aboriginal offenders must always be sentenced in a manner which gives greatest weight to the principles of restorative justice, and less weight to goals such as deterrence, denunciation, and separation. It is unreasonable to assume that aboriginal peoples themselves do not believe in the importance of these latter goals, and even if they do not, that such goals must not predominate in appropriate cases.

Clearly there are some serious offences and some offenders for which and for whom separation, denunciation, and deterrence are fundamentally relevant. [79] Yet, even where an offence is considered serious, the length of the term of imprisonment must be considered. In some circumstances the length of the sentence of an aboriginal offender may be less and in others the same as that of any other offender.

Generally, the more violent and serious the offence the more likely it is as a practical reality that the terms of imprisonment for aboriginals and non-aboriginals will be close to each other or the same, even taking into account their different concepts of sentencing. [ 100 ] Mr. Justice LaForme in R. v.

Kakekagamick , supra , said this on point in para. 34 of his reasons with respect to an appeal by a young Aboriginal man from a five-year sentence in an aggravated assault resulting in his domestic female partner suffering two broken neck vertebrae, various fractured ribs, and a fractured collarbone: [34] The Court affirmed that s. 718.2(

e) imposes a duty on the sentencing judge to approach the sentencing of Aboriginal offenders differently. That is, it is not a mitigating factor on sentencing simply to be an Aboriginal offender, as the Crown erroneously asserts in its factum. Nor is being an Aboriginal offender, as I have heard it referred to, a "get out of jail free" card. Position of the Crown [ 101 ] Ms. MacRae argued that having regard to the facts of this matter including that Mr. R. is a young Aboriginal offender and the restorative justice principles in R. v.

Gladue , supra , that an appropriate sentence would be in the range of three to four years, notwithstanding that the range as per the leading case law is as set out above. [ 102 ] She questions whether or not the remorse demonstrated in Mr. R.'s remarks to Dr. Stangland is genuine, suggesting there is some evidence when he told his foster mother about the event at 11:00 o'clock on the morning in question, and he almost seemed to be bragging about what occurred. [ 103 ] I note that I did not detect in her evidence at trial that Mr.

R. then expressed any genuine remorse for what he had done or that he could not remember what had occurred, which he claimed to be the case in his interview with Dr. Stangland. [ 104 ] Crown did not suggest that this case was clearly a premeditated act of violence as occurred, for example, in R. v. Haj-Ahmed , supra . Rather, she submitted, it was more of a spur-of-the-moment crime and likely when Mr. B. could not give the accused information on the guy he wanted, he assaulted him. [ 105 ] In truth, it is difficult to piece together precisely what occurred in the few moments that led up to Mr.

B. being struck where the Court has only his evidence to go on. The level of premeditation here was much less than for example in Haj-Ahmed , but in my view, it is not unreasonable to conclude for some short period of time at least, this accused attended in the park intent on dealing with the person who caused the loss of two female friends through a drug overdose. As I have said above, this is not really a material factor in my sentencing of this accused in any event. [ 106 ] Crown submitted that insofar as Mr.

R. appeared to be taking the law into his own hands on the evening of question, this act of vigilantism could not be condoned and was an aggravating factor. I agree with this submission.

[ 107 ] Ms. MacRae stressed the portion of Gladue , supra , at para. 79 which I have referred to that with violent offences an appropriate sentence may not differ between an Aboriginal and non-Aboriginal offenders. This passage from Gladue is also quoted with approval by Iacobucci J. in R. v. Wells , supra , at para. 42 and in turn the same passage in Wells was quoted with approval by the Chief Justice of this Province, Finch C.J.B.C., in R. v. Morris , 2004 BCCA 305 also followed in the R. v. Willier case I have referred to above at para. 43. [ 108 ] Ms.

MacRae pointed out that but for the emergency surgery which Mr. B. underwent, the final result of Mr. R.'s actions in this case could have been far more serious. I agree with this submission. [ 109 ] Crown stressed in her closing submission that the seriousness of this crime required a sentence of incarceration. Numerous attempts to control Mr. R.'s behaviour in the community have been unsuccessful, oftentimes because Mr. R. himself had not taken advantage of them, for example, attending school and treatment programs offered.

He had a significant number of breaches forming part of his record, for example, a termination of an earlier conditional sentence order. Mr. R. cannot abide by Court orders and requires, as Dr. Stangland seemed to suggest, a stricter setting without a lot of choices. He is doing relatively well in custody and could best be assisted with programs there against in the community where in essence there is little prospect he would comply. [ 110 ] I have not overlooked perhaps the most positive portion of Dr. Stangland's report at pp. 7 and 8 where he outlines at some length the successes achieved by Mr.

R. between his age 11-and-a-half to age 13 when living with a very supportive foster parent, one Andrew Brougham, from September 2003 to April 2005 who Mr. R. said had stuck with him and even advocated for him while in his care. Mr. R. went to school, played league football, was active in various sporting endeavours and attended anger management sessions. Mr. R. was then said not to be involved in criminal activity or substance abuse. Sadly, this positive relationship ended for really no good reason as described in this report. [ 111 ] Mr. R. has been in touch with Mr.

Brougham recently and hopes that he might have a future adult relationship with him. At some point Mr. Brougham married and it was not possible apparently for him to continue to have Mr. R. live with him as his new wife did not want this fostering relationship to continue. [ 112 ] The Ministry of Children and Family Development records state that by April 2005, Mr. R. had made huge gains. His youth record really started after April 2005, but that is not to say that he was not in serious trouble with the law at a very young age as outlined in Dr. Stangland's report. [ 113 ] I cannot help but feel that Mr.

Brougham for a short time represented to Mr. R. the parent he never really had when growing up. As well, perhaps stating the obvious, it would seem a goal Mr. R. might aspire to is to return to the place where he was at his age 13 so as to put himself again in a position where he might be successful. [ 114 ] In addition, Crown seeks a DNA order as this is a primary designated offence, and a ten-year firearms prohibition noting however that s. 109(3) does provide for a lifetime ban. Position of Defence [ 115 ] Mr.

Fullerton initially submitted that a sentence in the range of 18 to 24 months would be appropriate, and during his oral submission on December 28th, 2011 at the sentencing hearing, proposed a sentence of two years less one day over and above time served or new time, together with a two-year probation order on release, including a term that Mr. R. abstain from alcohol and drugs. [ 116 ] He stressed that Mr. R. has been a ward of the state from his age two to age 19, living in a great number of different foster homes.

His youth has been characterized with neglect, likely abuse, alienation and alcoholism at a young age. [ 117 ] There is a strongly-held view that he has FASD as per the 2006 assessment of the Asante Centre which I have referred to. He also suffers from certain mental health issues. He has a long history of exposure to both drug and alcohol abuse. [ 118 ] His Band in Manitoba was described by Mr. Fullerton to be impoverished. Mr. R. had never been there. He is alienated from his Aboriginal culture but wishes to become reconnected. He has no significant contact with members of this community.

His biological mother and father, both alcoholics, have never really acted as parents for him. He now has no positive role models. [ 119 ] Mr. R. has not, contrary to Crown's submission, thumbed his nose at opportunities he has been given. Rather, due to his overall condition including developmental disabilities, planning has been very difficult for him. As well, he has attended some programs over the years but arguably not one designed to deal with all his issues. Importantly, it is not his fault that he has had the disadvantages he does.

He abuses alcohol and has done so since a young age as a way of dealing with his complex range of problems. [ 120 ] Mr. Fullerton stressed that rehabilitation should be a key consideration in sentencing in this case, especially given his age. His remorse is genuine; he does feel bad for what he has done. He has never received a significant jail sentence. A sentence of two years less one day would be a significant step up for him. He wants to change his life and while on remand is said to have been attending both AA and NA meetings once every two weeks and is working.

His behaviour while in custody has been positive. [ 121 ] In answer to a question from the Court, Mr. Fullerton advised that his client had last attended AA meetings prior to his incarceration on the matter at hand at age 14 and said Mr. R. had attended with some degree of regularity from his age 12 through his age 14. [ 122 ] Mr. Fullerton conceded that Mr. R. did require the structure of a custodial environment. He submitted that if Mr.

R. was given a sentence of two years less one day and he could maintain his work status, he would go to Nanaimo and do the Guthrie House Therapeutic Community program only available to people in custody serving a provincial sentence. A copy of the brochure apparently prepared by the John Howard Society relating to this program was provided to me and marked Exhibit 2 at the sentencing hearing. I have carefully reviewed it. The program overview therein states: Guthrie House Therapeutic Community is a four month residential substance abuse program where residents have the opportunity to

make changes in their lives. There are four phases to the program that assist in developing skills for recovery management, re-entry planning, and linkages to recovering communities. The aim of treatment involves a change in lifestyle and personal identity. The primary approach to treatment is the community as a healer versus individual focus. Treatment activities emphasize learning, doing therapy rather than getting therapy. Our goal is to provide a safe and healing environment that will prepare residents to successfully live in their communities. [ 123 ] If enrolled, Mr.

R. would have an opportunity according to counsel's submission to deal with his substance abuse issues during the four month residential program and work within the facility at the same time, either in the kitchen or doing maintenance work. [ 124 ] I note the comment made by Dr. Stangland at p. 14 of his report dealing with substance use: As noted earlier, he went to AA in his early teenage years but he has not gone for a long time. He has gone to residential drug and alcohol treatment in Cranbrook, Chilliwack, and Vancouver.

He stated that he does very well within the residential treatment program, but on each occasion he left the program before it was completed. [ 125 ] I have been given no particulars as to the duration of these programs referred to by Dr. Stangland or for example how long after admission Mr. R. left them, I assume each time prematurely. It does not appear that any of these programs resulted in a cure for Mr. R. so to speak with respect to both his use of and abuse of both drugs and alcohol. [ 126 ] Mr. Fullerton submitted that unlike certain of the cases, he did not feel Mr.

R.'s actions on August 24th, 2010 could be described as premeditated. He said on the facts Mr. R. did not -- I think he meant initially -- intend to harm Mr. B. He did not know him. He chased someone else over the death of two women. He did not mistake Mr. B. for someone he was going after. Rather, he approached Mr. B. to get information about a person he believed was associated with the person chased and things went bad. In the result, the offence was not

an act of vigilantism. [ 127 ] In my view, if it was not directly so, it occurred indirectly in a series of events that could accurately be so described. Again, his foster mother testified at the trial that the accused, had said of the person chased that he was supposedly the person he intentionally went after the first time. [ 128 ] Mr. Fullerton argued that a sentence of two years less one day with two years probation would ensure a proper foundation for rehabilitation and would carry with it ongoing supervision. If on parole, his reintegration back into society would not be ensured.

There would be no to minimal counselling available to him on parole and no positive obligation on his parole officer to ensure that programs were got for him. Mr. R.'s motivation to strictly comply with the terms of a probation order would be on the understanding that if he breached the order, Crown would seek his detention for the breaches. [ 129 ] In reply, Ms. MacRae for the Crown did not agree with Mr. Fullerton's submission in essence relating to the dearth of programs available with federal penal institutions and in the event Mr.

R. were so sentenced and released on parole available on his release as a parolee. [ 130 ] Accordingly, I directed that a supplemental pre-sentence report be prepared by Ms. Zimick on point, namely, dealing inter alia with federal programs available to inmates in custody and to persons on parole and the same was received by me on or about January 9th, 2012. I understand both counsel would have received his. I received no further submissions from Crown with respect to its contents, but I have received, reviewed, and considered Mr.

Fullerton's written submission on point dated February 28th, 2012. [ 131 ] Having reviewed this supplemental report, I am satisfied that there are programs that would assist Mr. R. while incarcerated in a federal institution and if he were to be released on parole as against probation. I am also aware that there is binding legal authority to the effect that while I can take treatment possibilities into consideration, it is error to determine the length of a sentence solely to provide the same ( see R. v. Edwards , 2003 BCCA 214 ). [ 132 ] Mr. Fullerton took me through his cases. I have reviewed them.

As with the Crown cases, I do not intend to set out the facts of each of the some 18 cases I have reviewed in the course of preparing these reasons and in coming to my decision. Discussion [ 133 ] A major thrust of Mr. Fullerton's closing submission is that it would be beneficial for Mr. R. to be managed in a probationary setting in the community. Section 731(1) (

b) of the Criminal Code provides that such an order cannot be made if a sentence exceeds two years. [ 134 ] In N.A.D. , supra, my brother Judge de Couto at para. 54 seemed to conclude in the circumstances of that case similar to those in the case at bar, albeit the injury to the victim seems less significant there, that probation would be an important rehabilitative step. He was no doubt persuaded that the accused would in good faith comply with the orders that he made and cooperate in the process. The accused, like Mr.

R., committed the aggravated assault in part due to alcohol use and in part because he was associating with the wrong crowd, certainly factors in the case at bar. [ 135 ] I am not able to find on the facts of this case that if Mr. R. were to be sentenced so as to be placed on probation for a period of two years as Mr.

Fullerton proposes, that based on his history there is any real prospect that he would cooperate with his probation officer and adhere to the probation orders made by the Court. [ 136 ] A review of his record shows as I have said numerous failures to comply, and these relate of course to Court orders made as part of the historical sentencing process. Likewise, the sentences he received frequently involved supervision. It is difficult to see that this was necessarily a positive experience for him or one that deterred him from future misbehaviour.

The aggravated assault in issue in this case occurred as I understand the record seven days after Mr. R. was released following a conviction for breach of a Court order. [ 137 ] I have considered the unique and systemic and background circumstances which may have played a

part in bringing Mr. R.

before the Court. He has had an extremely difficult and unenviable childhood and I have no doubt that some of his conduct results from the various conditions he likely has as described above some of which he cannot be responsible for if they resulted from the actions of his mother, for example, prior to his birth. But I think he does need to take some responsibility for his ongoing use and abuse of both drugs and alcohol. [ 138 ] In my view, placing Mr.

R. on probation for two years or even three with an order that he attend counselling including residential treatment and not drink or abuse drugs would not be a viable rehabilitative plan. Mr. R. was aware of the resources that exist, for example, Alcoholics Anonymous meetings and has chosen not to access that one at least for some five years. He was aware of residential treatment programs but went and did not stay. I am not persuaded he would do so now if ordered by the Court or that he would abstain from alcohol use if on supervision in the community.

He will, I think, only do this when he comes to his own realization that he is a person who cannot drink and that the consequences of his doing so both to himself and others, for example, the Mr. B.s of this world, are so severe that he must forego it forever. [ 139 ] I am not of the view that the threat of Crown seeking his incarceration if he were to be placed on probation with orders to take alcohol abuse counselling and not to drink would be a sufficient deterrent to Mr. R. that he would comply with these Court orders. [ 140 ] It is my view that for Mr.

R.'s rehabilitation to be successful; it should occur in a highly-structured facility. He seems to do well in such environments. [ 141 ] The crime Mr. R. committed was a very serious one. Mr. B. has been very seriously affected by it and it seems reasonably certain that he will be affected by it for a long time going forward. One can only hope that for example with counselling Mr.

B. may yet get back to school and ultimately achieve some employment successes. [ 142 ] I must as well in this case consider the need for public safety that arises on the facts of this case. [ 143 ] Having considered all the circumstances of this case, in my view a fit and just sentence in this matter would be a sentence of three years and nine months or 45 months. This matter in my view is at the more serious end of the range of sentences either proposed by Crown or as per the authorities above referred to. The maximum sentence is 14 years.

The high end of the range is six years. [ 144 ] A sentence of three years and nine months is intended to take into account the so-called Gladue factors and the fact that Mr. R. is of Aboriginal heritage and the availability of programs that will be available to him to deal with his issues in the federal system. This is but a single factor of many I have considered including all provisions in s. 718 to s. 718.2 of the Criminal Code of Canada . [ 145 ] Mr. R. has been in custody as of today's date since June 10th, 2011, some 267 days by my count or say nine months.

I give him a credit on a one-for-one basis for the majority of this time served. [ 146 ] The reports I have referred to above were ordered by the Court on November 2nd, 2011. By my count, there are some 120 days or say four months that have elapsed since then to today's date. Pursuant to R. v. D.W.J. , referred to above at paras. 34 to 36, I am prepared to give Mr. R. a credit of 1.5 days for this period of his time in custody caused by the delay in these reports being prepared.

This period for credit purposes becomes therefore four months times 1.5 or six months and his overall credit for time served in custody since his arrest then becomes 11 months. [ 147 ] In the result, he will have 45 minus 11 or 34 months new time to serve in custody as a result of my sentence. [ 148 ] In addition, I make the DNA order sought by Crown counsel. [ 149 ] Lastly, pursuant to s. 109(1) and (2) of the Criminal Code , I order that J.R. is prohibited from possessing any firearm other than a prohibited firearm or restricted firearm and any crossbow, restricted weapon, ammunition and explosive substance for a period of time starting today and ending ten yeas after his release from prison.

In the case of any prohibited firearm, restricted firearm, prohibited weapon, prohibited device, and prohibited ammunition, I order that J.R. is prohibited from possessing any of these for his lifetime. [ORAL REASONS FOR SENTENCE CONCLUDED]