Her Majesty the Queen - v. -, 2012 SKPC 95

IN THE PROVINCIAL COURT OF SASKATCHEWAN Citation: 2012 SKPC 095 Date: June 15, 2012 Information: 24404368 Location: North Battleford _____________________________________________________________________________ Between: Her Majesty the Queen - and - Bradley Owen Jr. Wahobin Appearing: Suzanne Reid For the Crown Taras Udod For the Accused SENTENCING DECISION D. O ’ HANLON , J CHARGE [ 1 ] Mr.

Wahobin has entered a guilty plea on Information 24404368, Count #1 as follows: That he did on or about April 29, 2011 at Red Pheasant First Nation, Cando District, in the Province of Saskatchewan, break and enter a certain place to wit: a dwelling unit, situated at 580 Red Pheasant First Nation, Cando District, and did commit therein the indictable offence of assault causing bodily harm contrary to s. 348(1) (

b) of the Criminal Code .

FACTS [ 2 ] An Agreed Statement of Facts was filed as Exhibit P-1 on the sentencing hearing. The agreed facts are as follows: Bradley Wahobin (date of birth: October 4, 1985), the accused before the Court on a charge that he did commit a break and enter and commit assault causing bodily harm to Elbert Pahsaknunk contrary to s. 348(1) (

b) of the Criminal Code from April 29, 2011 at Red Pheasant in Saskatchewan, hereby admits: 1. That he was part of a group of six individuals who went to House […], Red Pheasant First Nation in Saskatchewan around 3:00 in the morning on April 29, 2011; 2. That the individuals with him were Robin Moosuk, Rosella Moosomin, Boyd Firingstoney, Rusty Pahsaknunk, and Byron Wahobin; 3. That he and the five other individuals involved had been drinking alcohol; 4.

That Shaylene Bear, Travis Wuttunee, and their children as well as Elbert and Anita Pahsaknunk, resided at House […] in April 2011, and were all asleep when Rusty Pahsaknunk and the others went to their residence; 5. That Elbert Pahsaknunk is an uncle to Rusty Pahsaknunk; 6. That Bradley Wahobin and the others gained entry to House […] without having the permission of the occupants and Rusty Pahsaknunk convinced Elbert Pahsaknunk to come outside on the front step of the house; 7.

That once outside, Rusty Pahsaknunk accused Elbert Pahsaknunk of causing Rusty Pahsaknunk and Rosella Moosomin’s mother’s death, this allegation being untrue; 8. That Elbert Pahsaknunk denied this and Rusty Pahsaknunk hit Elbert Pahsaknunk repeatedly in the head; 9. That while this was occurring Robin Moosuk was to the side of the steps on the ground and when Elbert Pahsaknunk was cowering over the side rail of the steps, Robin Moosuk began hitting Elbert Pahsaknunk in the head with slaps and punches from below; 10.

That Elbert Pahsaknunk managed to get inside the porch area of the home and he was followed inside by Robin Moosuk, Rosella Moosomin, Boyd Firingstoney, Byron Wahobin and Bradley Wahobin who continued to assault him; 11. That Elbert Pahsaknunk managed to drag himself into his kitchen and Bradley Wahobin kicked and punched Elbert Pahsaknunk while in the kitchen of House […]; 12. That the group continued assaulting Elbert Pahsaknunk while in the kitchen and repeatedly tried to drag Elbert Pahsaknunk outside

House […] but he was holding onto Anita Pahsaknunk’s legs; 13. That Shaylene Bear and Anita Pahsaknunk pleaded with them to stop doing what they were doing and they eventually did stop and leave; 14. That the incident lasted between 15 - 20 minutes and numerous frantic calls were made to 911 by the homeowners; 15. That the children of Shaylene Bear and Travis Wuttunee were in the residence at the time, were scared and crying and Travis Bear stayed with them in the bedroom for a period of time before sneaking them out a window and hiding them outside; 16.

That Elbert Pahsaknunk was seriously injured as a result, with cuts and bruises over his torso and head, temporary hearing loss and his dentures were broken, those injuries requiring that he attend hospital; 17. That the pictures attached as Exhibit A are fair and accurate depictions of Elbert Pahsaknunk’s physical injuries. This document was signed by both the Crown prosecutor, Ms. Reid and defence counsel, Taras Udod on March 26, 2012. [ 3 ] The photos attached to the Agreed Statement of Facts show the victim, Elbert Pahsaknunk, standing and displaying his injuries.

He has obvious bruising to his forehead, the bridge of his nose, his cheeks and ears, and his back. Other photos show him lifting his top lip and exposing a cut above his top teeth. He also depicts bruising to both his shoulders, the centre of his back, his rib area and his upper front chest. VICTIM IMPACT [ 4 ] The Crown filed victim impact statements for Shaylene Bear and Anita Pahsaknunk. These documents were filed as Exhibit P-2 on the sentence hearing. [ 5 ] Shaylene Bear’s victim impact statement states as follows: This has affected me in a number of ways: (

a) I am very confused as to what these people were thinking of coming into my home and for no reason at all. I also feel angry at times because my kids were put in danger. My three kids were very scared and we didn’t deserve this neither Elbert or Anita. It was very rude and selfish of them . . . (

b) I am still very scared to leave my door unlocked in my home and to go around places alone because I think these guys’ family and friends might hold a grudge on me and try to hit me, I am scared to see these people again. (

c) I feel down at times because people look down on me now over this but I did nothing wrong to deserve silent treatment and dirty looks. (

d) I hope the outcome of this helps these people to get better. I don’t feel hate for anyone but I will continue to pray for everyone involved.

[ 6 ] Anita Pahsaknunk’s victim impact statement states as follows: The night this happened I was so terrified. Thinking about how that the situation could have easily turned to a bad situation. How they could have turned on all of us but didn’t. Even how they could have killed my husband in front of me. It also made me feel that I had to watch my back everywhere I go now. I also think about what if my husband and I were sleeping what would have happened when he walked in and seen us. Would he have started hitting him or what. There are always these thoughts of the worst that could have happened.

Especially with the young children that were there and how terrified they would have been when this was all going on. I pray more now everyday for having my family and husband with me. Made me think twice about drinking and how or what could happen with this substance. I am always thinking twice and looking over my shoulder. Also checking the locks and windows twice for safety in our own home. CO-ACCUSEDS [ 7 ] Four of the co-accuseds in this matter have previously been sentenced. The Crown advised the Court of the sentences received by four of those co-accuseds. 1. Rusty Pahsaknunk - Mr.

Pahsaknunk had a preliminary hearing, then entered a guilty plea to the same charge. He received a sentence of five years incarceration. He had a leadership role in this offence. His criminal record was filed as Exhibit P-4 on the sentencing hearing and shows the following: January 15, 2008, he was convicted of obstructing a peace officer at Wetaskawin, AB and received a $450.00 fine i/d 7 days in custody; March 13, 2008 at North Battleford, SK, he was convicted of assault with a weapon and assault causing bodily harm.

He received a 30 month term of incarceration on each charge concurrent and a mandatory s. 109 prohibition order; On November 10, 2009 he received statutory release and then on April 20, 2010 his criminal record shows that he was a statutory release violator and was recommitted. The CPIC record shows that his DNA is on the known offender data bank. 2. Byron Wahobin - Mr. Wahobin entered a guilty plea to the same charge before preliminary hearing or trial. He was remanded prior to his sentencing. During his remand time he was moved to the Honour Dormitory of the Remand Unit.

His behaviour while on remand was exemplary. He received a sentence of three years and nine months incarceration minus his time on remand. His criminal record was filed as Exhibit P-5 on the sentencing hearing and contains numerous entries. They are as follows: March 6, 2006, he was convicted in North Battleford Youth Court of nine counts of break, enter and theft, use of a firearm during the commission of an offence, disguise with intent, arson causing damage to property, possession of property obtained by crime and theft.

He received a sentence of six months deferred custody and supervision followed by 18 months probation; July 3, 2008 in North Battleford Youth Court, he was convicted of uttering threats and three counts of failing to comply with an undertaking.

He was sentenced to six months deferred custody; December 9, 2008 in North Battleford Youth Court, he was convicted of mischief under $5,000.00 and received 30 days in custody and 15 days under supervision in the community; June 24, 2009, he was convicted as an adult in North Battleford Provincial Court of assault, obstructing a peace officer, breach of recognizance, breach of undertaking and fail to appear.

He received a sentence totalling five months in jail; July 23, 2010 in North Battleford Provincial Court, he was convicted of three counts of breach of undertaking and a charge of mischief under $5,000.00; he received a suspended sentence and 12 months probation. 3. Boyd Firingstoney - He entered a guilty plea after a preliminary hearing and received a sentence of five and one-half years incarceration. Mr. Firingstoney’s criminal record was tendered as Exhibit P-6 on the sentencing hearing. His entries on the record are as

follows: November 17, 2005 in North Battleford Youth Court, he was convicted of break, enter and theft, breach of recognizance and sexual assault. He received a sentence of 18 months probation and $500.00 restitution; July 3, 2007 as an adult, he was convicted of failing to appear. He was sentenced to a suspended sentence with nine months probation; July 2, 2009, he was convicted of obstructing a peace officer and two counts of breach of probation. He received a sentence of time served and a suspended sentence with probation for nine months. 4. Robin Moosuk - Mr.

Moosuk received a sentence of four and one-half years minus 8 months remand time after entering a guilty plea before preliminary hearing or trial. His criminal record was tendered as Exhibit P-7 on the sentencing hearing. The entries on his record are as follows: November 16, 2007 in North Battleford Youth Court, he was convicted of manslaughter and received a sentence of 22 months incarceration followed by 11 months under supervision in the community. There was also a mandatory prohibition order made under s. 51(1) of the Youth Criminal Justice Act .

September 6, 2010, as an adult, he was convicted of impaired driving and received a fine of $1,000.00 and a one year driving prohibition. PRE-SENTENCE REPORT [ 8 ] Probation Services prepared a Pre-Sentence Report on Bradley Wahobin to assist the Court in determining a fit and proper sentence. The Pre-Sentence Report gives a very good overview of Mr. Wahobin’s family and social relationships. He was 11 years of age when his parents separated. He was raised on the Mosquito First Nation. His father suffered from addiction issues and he reports verbal fighting between his parents prior to their separation.

After his parents separated, Mr. Wahobin moved in with his grandparents on Mosquito First Nation. His father stayed on Mosquito First Nation however his mother moved to Thunderchild First Nation. Bradley’s mother died when he was 13 years of age and he feels he still does not know exactly how she died. He has been told that she overdosed and froze to death. He believes that her death plays a role in his alcohol use. At approximately 16 or 17 years of age Bradley Wahobin moved to Saskatoon. He resided there for a short period and returned to live with his grandparents on Mosquito First Nation.

At 19 years of age his grandfather passed away. His grandmother then moved from Mosquito First Nation to Lloydminster and Bradley moved in with his father. He reports minimal communication and alcohol use by his father. [ 9 ] Bradley Wahobin has been in a ten year common-law relationship and has two children from that relationship. When his common-law learned of his offence she was mad, scared and upset with him. [ 10 ] Mr. Wahobin participates in cultural activities, plays basketball and plays the guitar.

During the time he resided with his grandparents he enjoyed a healthy lifestyle without alcohol use in the home. His grandparents were strong Christians and provided Bradley Wahobin a stable and loving home environment. [ 11 ] Mr. Wahobin has not completed his Grade 12 education. He has gained employment while awaiting sentencing. [ 12 ] Mr. Wahobin has not consumed alcohol since these offences. He has been on release on the electronic monitoring program and has been doing very well on that program.

When this matter was adjourned for me to consider a fit and proper sentence, his bail supervisor was in Court and reported that Mr. Wahobin had done excellent on the program. Mr. Wahobin was to be refitted with the electronic monitoring bracelet, and placed back on the program until his sentencing is concluded.

[ 13 ] Mr. Wahobin is remorseful for the offence. He states that he is mad at his “stupid” choices and reports he would not have committed this offence had he not been consuming alcohol. He does however not recall the events associated with the offence due to his alcohol consumption. [ 14 ] The Pre-Sentence Report deals specifically with the “ Gladue factors”. The report states as follows at page 5: Brad is a member of the Mosquito First Nation. Brad does not recall experiencing direct racism growing up or as an adult, but states that he grew up primarily in a First Nations community.

He reports that his family was not well off, but stated he always had food and proper clothing. Brad reports no abuses growing up other than alcohol use by his father. Brad has experienced family breakdown, after his parents separated he moved in with his grandparents and although his siblings stayed with his father, he did see them often. He reports his mother attended residential school and Glenda (the accused’s aunt) believes Brad’s paternal great-grandmother attended as well.

Brad’s mother moved to Thunderchild First Nation and he had limited contact with her and his half siblings from her new common-law relationship. At age 13 Brad’s mother overdosed and froze to death. At age 19 Brad’s primary caregiver passed away and his other primary caregiver moved to another community, leaving Brad on his own for the first time. Brad could not relay what effects his ancestry has had on his life, however, his aunt Glenda reports Brad was isolated from the negative behaviours that have occurred in First Nations communities.

But when Brad’s grandfather passed and his grandmother moved away he was left with no guidance and exposure to a world he was not used to. She reports this is when he turned to negative peers and alcohol. [ 15 ] Mr. Wahobin scored a medium on the Saskatchewan Primary Risk Assessment tool. The major risk factors were academic and vocational skills, unemployed at the time of the offence, peers and companions, and attitude and self-management. [ 16 ] The author of the report goes on to say that if incarcerated, Mr. Wahobin would be able to access addiction programming while in a correctional facility.

He would also be able to access counselling to address his peer relations, attitude and self-management. Several terms are then recommended if a community based sentence is ordered by the Court. CROWN COUNSEL SUBMISSIONS [ 17 ] Counsel for the Crown are submitting a sentence in the range of four to five years in a federal penitentiary would be appropriate. They are also seeking a DNA order and s. 109 firearms prohibition. The Crown does however admit that Mr. Wahobin was not in a leadership role in the commission of this offence. [ 18 ] In speaking to sentence, Crown counsel relied on two cases.

They are the cases of R. v. Pelly , 2006 SKCA 60 and R. v. Payne , 2007 SKCA 28 . [ 19 ] In the Pelly case, the accused was convicted of robbery. Mr. Pelly had been released from prison on August 8, 2002 at approximately noon. At about 5:30 that evening, he, his spouse and another woman invaded the home of an older married couple. During the robbery, the elderly male victim was stabbed in the chest and suffered serious injuries resulting in a hospital stay of approximately eight days. The circumstances of this offence are clearly worse than the circumstances of this case. Mr.

Pelly’s criminal record was far more extensive than Mr. Wahobin’s, and contained much more violence including an attempted murder conviction and four convictions for kidnapping. Mr. Pelly received a sentence of 15 years. The Crown was not submitting this case for the length of sentence, but rather were relying on the following paragraph from the Pelly decision: [57] It must be clear to all that crimes of this nature strike at the very core of a peaceful and safe society, violate the security of the home, and often result in lasting physical and psychological injury.

They are terrifying crimes, and it is imperative they be treated with the utmost seriousness in the interest of preserving public safety and upholding public confidence in the administration of justice. So, all should know that the courts of this province, in step with those of others, will come down hard on violent crimes entailing “home invasions” in order to protect the public from the invasiveness and violence associated with them. [ 20 ] In the case of R. v. Payne , a 2007 Court of Appeal sentencing decision, the accused was convicted of assault with a weapon.

He was a 21 year old male with a Grade 10 education. He indicated that he did not have a problem with drugs or alcohol but did associate with negative peers and got into trouble with the law when he drank. The accused had been informed that one of the victims

had “jumped” his friend. The accused and two of his friends then went to the home of the victim, walked in the back door and asked the residents if they knew who had jumped his friend. He then began to wrestle with one of the people in the house and the accused hit another man in the shoulder with the dull side of a machete that he had brought with him. He entered the bedroom of the man who he believed had jumped his friend and confronted him. The man’s girlfriend called the police and the accused was apprehended for the home invasion upon the police arrival. Mr.

Payne was originally sentenced to two years less one day however, on appeal the sentence was increased to four years incarceration with credit for five months leaving a total of 43 months in a federal penitentiary. DEFENCE COUNSEL SUBMISSIONS [ 21 ] Counsel for the defence made very short submissions on behalf of their client. They did however point out that the accused did have a great number of family members present in Court to support him. Mr. Udod indicated that Mr. Wahobin sincerely regretted the offence however he does not remember the offence itself. Mr.

Wahobin does accept that there are other witnesses that place him at the scene of the offence and he therefore accepts his responsibility. Mr. Wahobin’s cooperation with the probation officer and his guilty plea before the Court were offered in mitigation. THE LAW [ 22 ]

Section 718 of the Criminal Code states as follows: The fundamental purpose of sentencing is to contribute, along with crime prevention initiatives, to respect for the law and the maintenance of a just, peaceful and safe society by imposing just sanctions that have one or more of the following objectives:

a) to denounce unlawful conduct;

b) to deter the offender and other persons from committing offences;

c) to separate offenders from society, where necessary;

d) to assist in rehabilitating offenders;

e) to provide reparations for harm done to victims or to the community; and

f) to promote a sense of responsibility in offenders, and acknowledgement to the harm done to victims and to the community. [ 23 ]

Section 718.1 of the Criminal Code then states: A sentence must be proportionate to the gravity of the offence and the degree of responsibility of the offender. [ 24 ]

Section 718.2 of the Criminal Code then states: A Court that imposes a sentence shall also take into consideration the following principles:

a) A sentence should be increased or reduced to account for any relevant aggravating or mitigating circumstances relating to the offence or the offender and, without limiting the generality of the foregoing, (

i) evidence that the offence was motivated by bias, prejudice, or hate based upon race, national or ethnic origin, language, colour, religion, sex, age, mental or physical disability, sexual orientation or any other similar factor,

(ii) evidence that the offender, in committing the offence, abused the offender’s spouse or common-law partner, (ii.1) evidence that the offender in committing the offence, abused a person under the age of 18 years, (iii) evidence that the offender in committing the offence, abused a position of trust or authority in relation to the victim, (iv) evidence that the offence was committed for the benefit of, at the direction of, or in association with a criminal organization or (

v) evidence that the offence was a terrorism offence, shall be deemed to be aggravating circumstances;

b) a sentence should be similar to sentences imposed on similar offenders for similar offences committed in similar circumstances;

c) where consecutive sentences are imposed, the combined sentence should not be unduly long or harsh;

d) an offender should not be deprived of liberty, if less restrictive sanctions may be appropriate in the circumstances, and

e) all available sanctions other than imprisonment that are reasonable in the circumstances should be considered for all offenders withparticular attention to the circumstances of Aboriginal offenders. [25]

Section 348.1 for the Criminal Code reads as follows: If a person is convicted of an offence under s. 98 or s. 98.1, subsection 279(2) or s. 343, 346 or 348 in relation to a dwelling- house, theCourt imposing the sentence on the person shall consider as an aggravating circumstance the fact that the dwelling-house was occupiedat the time of the commission of the offence and that the person, in committing the offence,

a) knew that or was reckless as to whether the dwelling-house was occupied; and

b) used violence or threats of violence to a person or property. [26] The Supreme Court of Canada in R. v. Ipeelee, 2012 SCC 13 , 2012 SCC 013 has recently reaffirmed the “Gladuefactors” set out in the case of R. v. Gladue, (SCC), [1999] 1 SCR 688. [27] The Gladue decision requires sentencing judges to undertake the sentencing of Aboriginal offenders individually and uniquelydue to Aboriginal circumstances. I must therefore consider the unique systemic or background factors that may have played a

part inbringing the offender before the Court. Gladue allows a sentencing judge to take judicial notice of the history of colonialism,displacement of Aboriginal people, history of residential schools and the underlying effects they have had including lower educationalattainment, lower income and higher unemployment, higher rates of substance abuse and suicide and higher rates of incarceration ofAboriginal people. APPLICATION OF THE LAW TO THE CASE AT HAND

[ 28 ] There can be little doubt that the actions of Mr. Wahobin and his co-accused had a profound and traumatic affect on the victims. The two victim impact statements that were submitted, provide a vivid portrayal of this. The culprits went into the victim’s home and assaulted him with his family and young children present. I am satisfied that the circumstances of this offence constitute a home invasion and are therefore aggravating under s. 348(1) of the Criminal Code . I am satisfied also, that the attack on the victim was prolonged and not merely fleeting.

As stated in the Pelly decision, this is a case that clearly strikes at the very core of a peaceful and safe society, violates the security of the home and has a lasting psychological impact not only on the victim but his entire family. The Court must therefore preserve public safety and uphold public confidence in the administration of justice. In order to do this, there must be a significant and meaningful sentence. This sentence however must also conform with the principles enunciated in ss. 718.1 and 718.2 of the Criminal Code and must take into consideration the Gladue factors. [ 29 ] Mr.

Wahobin was arrested shortly after the incident. He has been on release on electronic monitoring for approximately 13 months. Mr. Wahobin has performed very well in the community while being on interim release. He has obtained a job and is now gainfully employed. He enjoys the support of his family and extended family as was evident by the number of people in Court supporting him when sentencing submissions were made. [ 30 ] Mr. Wahobin admitted his

part in the incident even though he had little or no recollection of his participation due to his alcohol consumption. Mr. Wahobin’s counsel advises that he accepts the evidence of other individuals that place him at the scene of the offence. He entered a guilty plea before preliminary hearing or trial. He sincerely regrets his involvement in the offence and advises that it would not have occurred but for his use of alcohol. I am satisfied Mr. Wahobin was not an instigator of this offence.

And, all indications, from the accused’s counsel and the Pre-Sentence Report, are that the accused has not been using alcohol since this offence. [ 31 ] Mr. Wahobin is in a long term meaningful relationship with two young daughters. The Pre-Sentence Report indicates he associates mostly with his family and plays with his daughters, reads to them and guides them. Even though his spouse was mad, scared and upset with him over the offence, she still supports him. [ 32 ] Mr. Wahobin grew up on Mosquito First Nation. After the separation of his parents he went to live with his grandparents.

His mother, who left the Mosquito First Nation, died of an overdose and froze to death. His father was also involved in substance abuse. Bradley Wahobin enjoyed a supportive and nurturing upbringing in his paternal grandparents’ home. This continued until he reached the age of 19, when his grandfather passed away and his grandmother left the First Nation. This left Mr. Wahobin with no guidance and exposure to a world he was not used to.

His aunt reports that this is when he turned to negative peers and alcohol. [ 33 ] I am satisfied that Bradley Wahobin’s upbringing and circumstances contributed to his offending behaviour. He has a prior criminal record which includes a 2007 conviction for aggravated assault, three breaches of recognizance and a driving over .08. He received a sentence of 24 months, deemed served, on the aggravated assault charge in 2007.

That is the last entry on his criminal record. [ 34 ] Although the Crown is seeking a sentence of four to five years in a federal penitentiary, I am of the opinion that Bradley Wahobin’s sentence should be more in the range of Byron Wahobin’s sentence as opposed to Rusty Pahsaknunk. Bradley Wahobin was not a leader or an instigator in this offence. I am satisfied that he would not have participated in this offence but for his alcohol consumption on that evening. He, like Byron Wahobin, has behaved very well since this offence.

Although Byron Wahobin has been on remand since the offence, and his good behaviour has allowed him to be moved to an Honours Dorm, Bradley Wahobin should not derive less benefit for his behaviour simply because it was in the community. It is indeed possible he should receive more credit as he has performed very well in a less structured environment.

SENTENCE [ 35 ] After considering all of the above, I am satisfied that a term of incarceration in a federal penitentiary is required in order to denounce the unlawful conduct, deter this offender and other persons from committing this type of offence and to separate Mr. Wahobin from society in order to ensure the safety of society. I consider as well, that this offence constitutes a home invasion as contemplated by the Criminal Code , that the sentence must preserve public safety and uphold public confidence in the administration of justice. I do however also consider that Mr. Wahobin is an Aboriginal offender.

[ 36 ] I can see no reason why Bradley Wahobin’s sentence should be greater than the sentence imposed on Byron Wahobin. Byron Wahobin’s criminal record is far more extensive than that of Bradley Wahobin however, he does not have an aggravated assault on his criminal record. He does however have convictions for using a firearm during the commission of an offence, disguising himself with intent, and assault.

Also, the most recent entry on his criminal record is from July 2010, approximately nine months before the commission of this offence. [ 37 ] Not only am I of the view that Bradley Wahobin’s sentence should not be longer than the sentence imposed on Byron Wahobin for the same offence, in all of the circumstances, I am satisfied that the sentence for Bradley Wahobin should be slightly less. I therefore sentence Bradley Wahobin to three years and six months in a federal penitentiary beginning today.

There will also be a mandatory DNA order under s. 487.05 of the Criminal Code and a mandatory s. 109 firearm prohibition for a period of ten years after his release from imprisonment. There is no need to make a further order regarding the disposal of firearms as counsel has advised he has none in his possession. In all of the circumstances, the victim impact surcharge is waived as an undue hardship. ______________________ D. O’Hanlon, J