Her Majesty the Queen ) L. Carson, W. Friesen, for the Crown ) - v. -, 2013 MBPC 31

CITE# 2013 MBPC 31 THE PROVINCIAL COURT OF MANITOBA Winnipeg Centre BETWEEN: Her Majesty the Queen ) L. Carson, W. Friesen, for the Crown ) - and - ) ) K.H. ) W. Armstrong, for the Accused ) ) Judgment delivered: May 16 th , 2013 ) Restriction on Publication: Section 110(1) of the Youth Criminal Justice Act prohibits the publication of any information that may identify the young person having been dealt with under this Act. Lee Ann Martin, P.J.

Introduction [ 1 ] Between the dates of November 7 and 9, 2011, 15 year old K.H. committed six robberies at gunpoint against youths ranging in age from 13 to 16, throughout the City of Winnipeg, Manitoba. The Crown has applied for an order that K.H. be liable to an adult sentence pursuant to s. 64 of the Youth Criminal Justice Act (“YCJA” ) .

The Law [ 2 ] In principle, young persons under the age of 18 who commit criminal offences are subject to the provisions of the YCJA. [ 3 ] Under the YCJA, these offending young persons benefit from a presumption of reduced or diminished moral blameworthiness because they have a heightened vulnerability, less maturity and a reduced capacity for moral judgment. Youths will often act without foresight or self-awareness and often lack empathy for those who may be the victims of their wrongful acts.

They often lack the intellectual capacity and experience to fully appreciate the consequences of their acts which are often a result of immaturity, impulsiveness or other ill considered motivations. ( R. v.

B.(D.) , 2008 SCC 25 , para. 41 ) [ 4 ] This presumption of diminished moral blameworthiness, can, however, be rebutted on application by the Crown, if the court is satisfied “that the seriousness of the offence and the circumstances of the offender justify an adult sentence notwithstanding” the young person’s age. ( B.(D.) , para 77 ) [ 5 ] The factors a court is to consider on such an application are set out in s. 72 of the YCJA. [ 6 ] S. 72 was recently amended on October 23, 2012. The current wording of s. 72 is as follows: 72.

(1) The youth justice court shall order that an adult sentence be imposed if it is satisfied that (

a) the presumption of diminished moral blameworthiness or culpability of the young person is rebutted; and (

b) a youth sentence imposed in accordance with the purpose and principles set out in subparagraph 3(1)( b )(ii) and

section 38 would not be of sufficient length to hold the young person accountable for his or her offending behaviour. [ 7 ] Given the offence date of K.H.’s offences, it is the pre-amendment wording of s. 72 that is applicable [1] . That wording is as follows: 72.

(1) In making its decision on an application heard in accordance with

section 71 , the youth justice court shall consider the seriousness and circumstances of the offence, and the age, maturity, character, background and previous record of the young person and any other factors that the court considers relevant, and

(

a) if it is of the opinion that a youth sentence imposed in accordance with the purpose and principles set out in subparagraph 3(1) ( b )(ii) and

section 38 would have sufficient length to hold the young person accountable for his or her offending behaviour, it shall order that the young person is not liable to an adult sentence and that a youth sentence must be imposed; and (

b) if it is of the opinion that a youth sentence imposed in accordance with the purpose and principles set out in subparagraph 3(1) ( b )(ii) and

section 38 would not have sufficient length to hold the young person accountable for his or her offending behaviour, it shall order that an adult sentence be imposed. [Emphasis added] [ 8 ] The statutory

interpretation of the amended s. 72 remains to be seen. As for its pre-amendment wording, case law is clear that the s. 72 test is a blended consideration of all relevant factors, not a two-part test that would require the Crown to first rebut the presumption of moral blameworthiness before satisfying the court that a youth sentence would not be long enough to hold the youth accountable for his or her offending behaviour. ( R. v. Skeete, 2013 NSPC 3 ) [ 9 ] The Crown’s onus in rebutting the presumption of diminished moral blameworthiness is not overly onerous.

It is simply to satisfy the court, on consideration of all relevant factors, that a youth sentence would be of insufficient length to meet the base requirement of accountability that drives the entire YCJA sentencing regime. ( R. v. A.(O.), 2007 ONCA 144 , para. 59 , as well as R. v.

Z. (A.A.), 2013 MBCA 33 ) [ 10 ] “Accountability” under s. 72 is “offender-centric”, such that it excludes accountability to society in any larger sense or any notion of deterrence. ( A.(O.) para. 42, 43 ) It is more akin to the adult sentencing principle of retribution in the sense that the punishment must reflect the moral culpability of the offender, having regard to his intentional risk-taking, the consequential harm caused by the offender, and the normative character of the offender’s conduct. [ 11 ] Because young persons benefit from a presumption of diminished moral culpability or moral blameworthiness, their accountability is different than that of an adult.

The difference is apparent in the provisions of ss. 3(1)(b)(ii) and 38: 3.

(1) The following principles apply in this Act: (

b) the criminal justice system for young persons must be separate from that of adults and emphasize the following: (ii) fair and proportionate accountability that is consistent with the greater dependency of young persons and their reduced level of maturity , 38.

(1) The purpose of sentencing under

section 42 (youth sentences) is to hold a young person accountable for an offence through the imposition of just sanctions that have meaningful consequences for the young person and that promote his or her rehabilitation and reintegration into society, thereby contributing to the long-term protection of the public.

(2) A youth justice court that imposes a youth sentence on a young person shall determine the sentence in accordance with the principles set out in

section 3 and the following principles: (

a) the sentence must not result in a punishment that is greater than the punishment that would be appropriate for an adult who has been convicted of the same offence committed in similar circumstances; (

b) the sentence must be similar to the sentences imposed in the region on similar young persons found guilty of the same offence committed in similar circumstances; (

c) the sentence must be proportionate to the seriousness of the offence and the degree of responsibility of the young person for that offence; (

d) all available sanctions other than custody that are reasonable in the circumstances should be considered for all young persons, with particular attention to the circumstances of aboriginal young persons; and (

e) subject to paragraph ( c ), the sentence must (

i) be the least restrictive sentence that is capable of achieving the purpose set out in subsection (1), (ii) be the one that is most likely to rehabilitate the young person and reintegrate him or her into society, and (iii) promote a sense of responsibility in the young person, and an acknowledgement of the harm done to victims and the community.

(3) In determining a youth sentence, the youth justice court shall take into account (

a) the degree of participation by the young person in the commission of the offence; (

b) the harm done to victims and whether it was intentional or reasonably foreseeable; (

c) any reparation made by the young person to the victim or the community; (

d) the time spent in detention by the young person as a result of the offence; (

e) the previous findings of guilt of the young person; and

(

f) any other aggravating and mitigating circumstances related to the young person or the offence that are relevant to the purpose and principles set out in this section. [Emphasis added] Consideration of the s. 72 factors Circumstances and Seriousness of the Offence [ 12 ] The case before this Court involves the use of a restricted firearm in the commission of six robberies. The firearm, a 22 semi- automatic pistol (the “pistol”) had been given to K.H. by an Indian Posse gang member with two rounds of live ammunition.

K.H. was told to “do a mission” and as a result, he would gain membership in the gang. [ 13 ] It was against this backdrop that K.H. terrorized young adolescents over a period of three days. He would approach them and rob them at gunpoint. His demeanour and behaviour during the commission of these offences were such that many of these young adolescents thought they were going to die. [ 14 ] The first robbery was committed on November 7, 2011, at 4:34 p.m. at the corner of Hastings and Dunkirk. K.H. approached 13 year old M.G., pulled out the pistol and demanded money.

When M.G. answered that he did not have cash, K.H. made him empty his pockets and threatened to shoot him. K.H. took M.G.’s cell phone and told him to go. M.G. ran home and told his uncle. The two followed K.H. to Osborne Street, where K.H. entered a back lane.

When K.H. noticed them, he stopped and pointed the pistol at them, and then ran off. [ 15 ] M.G. has not provided a victim impact statement to the Court but third parties have indicated that he was seriously impacted as a result of this incident and has been receiving treatment at the Trauma Clinic. [ 16 ] Just minutes after robbing young M.G., K.H. went on to rob A.W. and K.C., two 16 year old boys. As the victims were walking in their neighbourhood in south Osborne on the way to the YMCA, K.H. approached them and asked if they were ‘down’. He then took out the pistol, loaded it, and pointed it at them.

He proceeded to rob them of some $25 and left. [ 17 ] K.C. explained that he was shocked and jumpy after the incident. A.W. reflected on what could have happened if K.H. had fired the pistol. [ 18 ] Later that same day, at 7:14 p.m., K.H., now in downtown Winnipeg, approached 13 year old A.B. and asked for money for drugs. When A.B. said she did not have any and began to walk away, K.H. followed her and cut her off, telling her “if you don’t give me your fucking money I’ll shoot you”. He then pulled out the pistol and pointed it at her.

A.B. handed over the $3 she had on her and K.H. left. [ 19 ] A.B. was scared and traumatized as a result of the robbery. She thought K.H. was going to shoot her. She continues to be vigilant when out in the community, fearing for her safety. [ 20 ] The next day, on November 8, at about 1 p.m., K.H. approached M.L., a 16 year old boy who was walking in the area of Chief Peguis Bridge. K.H. asked M.L. what gang he was with. When M.L. replied that he was not with a gang, K.H. took out the pistol, grabbed M.L.’s backpack, rummaged through it and stole $1.00 and a $30 pair of cubic zirconia earrings.

He told him, “don’t catch yourself slipping,” and left. [ 21 ] At 3:10 p.m. that same afternoon, K.H. approached N.P., another 16 year old boy who was walking in the area of Main and Ridgecrest. K.H. ordered N.P. to the ground, saying, “Get the fuck down”. K.H. took out the pistol and demanded money and N.P.’s cell phone. [ 22 ] N.P. immediately reported the robbery of his cell phone to the police. The police called N.P.’s cellular number in an attempt to have it returned. K.H. answered the cell phone and agreed to return the phone but stated, “Don’t fuck up. I want to put one in someone.

You fuck up, you’re dead.” [ 23 ] As a result of the robbery, N.P. has been suffering panic attacks and depression. His sleep and mood have been greatly affected. [ 24 ] The sixth robbery occurred on November 9 at about 10 a.m. K.H. approached N.D., a 14 year old boy who was walking in the

area of Memorial and Portage. K.H. came up to N.D., lifted his shirt and showed him the pistol and demanded his Blackberry. K.H. stated, “I have a gun and won’t hesitate to use it.” [ 25 ] As a result of the robbery, N.D. was shaken and worried that K.H. would find his personal information. He was also shocked that such a thing would happen in broad daylight. [ 26 ] K.H. was eventually arrested by police later that same day. He was found with the pistol and two live rounds of ammunition, as well as several grams of marijuana.

Age, Maturity, Character, Background, Previous Record and Gladue Factors [ 27 ] The evidence related to the above s.72 factors derives from a June 7, 2012 Forensic Report and two Pre-sentence and Gladue Reports dated June 3, 2010 and June 14, 2012. [ 28 ] At the time of the offence, K.H. was four months past his 15 th birthday. Most of his life up until that point had been characterized by lack of adult supervision and structure. [ 29 ] K.H.’s father hails from Skownan First Nation; his mother, from Pinaymootang (Fairford) First Nation.

There is no indication that either of his parents or grandparents attended residential school and no indication that they practice any cultural spirituality or teachings. Likewise, there is no indication that K.H. suffered any physical, emotional or sexual abuse. That said, K.H. did grow up in a home with domestic and substance abuse. His mother left the family in 2008, coincidentally at the same time K.H. became criminally involved. Her departure left K.H.’s father to care for seven children.

Since that time, K.H. began abusing substances, stopped attending school and more recently, started associating with gangs. Essentially, K.H. lived outside of the control of adult supervision and support. [ 30 ] K.H. also suffered several losses at a young age: a cousin was beaten to death, an uncle committed suicide, and his grandparents died. [ 31 ] At the time of the current offences, K.H. was not a stranger to the youth criminal justice system.

He had been detained in custody on five prior occasions, sentenced twice for nine offences and been under community supervision for close to three years. [ 32 ] His offending began at the age of 12, starting with a Housebreak Enter Commit Theft and a Breach of Undertaking by not abiding by his curfew. The circumstances of the Housebreak Enter Commit Theft are concerning. K.H. broke into a residence to steal a 12 gauge shot gun for his cousin. The weapon was later used in the commission of an offence.

K.H. was placed on 1 year of supervised probation and while on that probation, he committed a Theft Over $5000, three further Breaches of Undertaking and three additional Housebreak Enters. K.H. was placed on two years of supervised probation, which included the Intensive Support and Supervision Program (“ISSP”). Despite these community-based dispositions, K.H. did spend some time in custody on five separate instances.

His behaviour at that time was characterized by threatening, abusive and gang-related behaviour. [ 33 ] Neither those periods of detention nor his supervision under probation services since 2009 seem to have curtailed his risk in the community, which has always been assessed as “high”. Although he was under the supervision of the ISSP for one year in 2010, and seems to have done well while on that program, he reoffended in a serious way, just months later, with these current offences. [ 34 ] K.H.’s difficulty with rehabilitation was highlighted in the June 7, 2012 Forensic Report.

That Report references some of the cognitive challenges K.H. faces, notably significant verbal learning deficits with approximate levels of grade 2 word reading and grade 3 math computation. It also references his issues with substance abuse and his gravitation toward gangs and criminal behaviour. More concerning, are some emerging features of Conduct Disorder: “...[K.H.] presents as a youth with significant verbal learning deficits who has been out of control of adult authority.

It appears that he has gravitated towards a lifestyle characterized by gang involvement and substance abuse, and that this lifestyle likely provides him with self-esteem and a sense of belonging with peers. Consistent with his apparent cognitive difficulties, it appears that he tends to be relatively non-reflective in his decision-making and behaviour, and has been significantly impacted by his environment and peers. In that regard, his decision-making has likely been strongly influenced by a “gang mentality” in which substance abuse and criminal behaviour, including violence, are normalized.

It is likely that his judgement has been further compromised by substance abuse. Of note, although [K.H.] exhibits features of Conduct Disorder, there does not appear to be a major mental disorder that would need to be considered in a sentencing process.” [ 35 ] On the positive side, K.H. appears to have taken to the structured environment of the Manitoba Youth Centre since his detention in November 2011. Not only has K.H. been both respectful and helpful, he has engaged in the mediation process when he comes into conflict with peers.

He has also engaged in rehabilitative programming and has been described as an active and mature participant. More recently, he requested participation in a relapse prevention program to help him when he is released. He is also considered not to be entrenched in the gang sub-culture.

Overall, his behaviour in the institution has earned him the highest “Level 4” status of compliance. [ 36 ] Despite the positive steps K.H. has taken over the last one and a half years, the Forensic Report still cautions that K.H. does not seem to understand the amount of support he will require to establish a pro-social lifestyle: “In planning with [K.H.], it is evident that consistent structure, clear expectations, and available supports have been beneficial to his positive functioning.

Areas to target in intervention with [K.H.] would include substance use and pro-social decision-making, with an emphasis on relapse prevention. In light of his cognitive and specifically verbal functioning deficits, [K.H.] impresses as a youth who would likely require ongoing support in school…. In addition, in light of his cognitive deficits, it is anticipated that [K.H.] would require

support, repetition and opportunities to practice concepts and skills from programs, as well as assistance in applying and generalizing what he has learned.” [ 37 ] In summation, K.H. presents with a plethora of issues that still need to be addressed. Though he has been a receptive and willing participant in his rehabilitation since his detention in November 9, 2011, and rehabilitation appears possible, the path to that rehabilitation will be long.

The fact that K.H. still has a way to go before his risk to the community is sufficiently reduced is perhaps best illustrated by his responses to the current offences – some laughing, the thought that the pistol made him feel “powerful like he could do anything” and that committing the offences “wasn’t hard”. Case Law [ 38 ] The Crown provided two cases in which a young person received an adult sentence.

The facts of these cases and the degree of participation of the young person in the commission of the offences were not as serious as in K.H.’s case. [ 39 ] In R. v R.L., 2009 MBQB 137 , 16 year old R.L. participated in four gang-related robberies of convenience stores. The co- accuseds were disguised and one of them carried an unloaded rifle. RL’s involvement was limited to placing the stolen goods in a bag and carrying them away though he benefitted from the profits of the robberies. R.L. had no prior record.

Justice McKelvey noted positive and negative factors related to the young person including continued acting out while in custody, but also progress with counselling and academics and lack of a prior record. She sentenced him to a four year adult sentence. [ 40 ] In R. v. Twoheart , an unreported June 8, 2009 decision of Manitoba Provincial Court Judge Lerner, a 14 year old committed four armed robberies of convenience stores over a two day period. His co-accused carried an unloaded rifle which was pointed at the victims. Mr.

Twoheart had a prior record and had just been released from the Manitoba Youth Centre one month prior to the offences. His past was more troubled than K.H.’s though he too had made some progress while in custody. He received an adult sentence of 6 years, though the application for an adult sentence was not opposed. Analysis [ 41 ] Robbery is subject to a maximum 3 year sentence under the YCJA. Though consideration of pre-sentence custody is to be given pursuant to s. 38, the Manitoba Court of Appeal has held that this custody need not be credited toward the sentence. ( R v. P.(N.W.), 2008 MBCA 101 ).

As a result, K.H. could be incarcerated for a maximum period of approximately 3.5 years – 18 months and 7 days already spent in custody, and 24 months going forward. He would then be subject to one year of community supervision. [ 42 ] Defence counsel says this is enough. Crown disagrees. [ 43 ] This is a difficult case. At the time of the offence, K.H. was very young. Not only does he suffer from significant cognitive deficits, he is at an age where his intellectual development is still taking place.

If his most recent detention is any indication, the prospects of rehabilitation are positive in a very structured setting. That said, this Court is cognizant of the amount of time and support that will be required for K.H.’s rehabilitation and the potential risk to public safety, should his rehabilitation not take place. [ 44 ] This Court is also cognizant of the extremely serious nature of the offences. They had gang undertones. The victims were threatened with death. On one occasion the pistol was loaded in front of the victim. On another occasion the victim was told to drop to the ground.

The consequential harm to these young victims is significant. Some victims are still in treatment as a result of psychological harm. None of the victims will ever feel safe in their own neighbourhood. [ 45 ] K.H. was the sole perpetrator of these offences.

It is he alone who is responsible for his offending on such a widespread scale over a period of three days. [ 46 ] In balancing these factors and taking into consideration ss. 3(1)(b)(ii) and s. 38, and in particular, s. 38(2)(d), I find that the Crown has rebutted the presumption of diminished moral blameworthiness and that a youth sentence is not sufficient to hold K.H. accountable for his offending behaviour. As a result, I order that he be liable to an adult sentence. “Original Signed by:” Lee Ann Martin, P.J.