R. v. D.W., 2011 NLCA 21

Date: 20110302 Docket: 10/121 & 10/124 Citation: R. v. D.W. , 2011 NLCA 21 Section 110(1) of the Youth Criminal Justice Act respecting non-publication of the identity of a person as having been dealt with under this Act applies to this judgment. Section 111(1) of the Youth Criminal Justice Act respecting non-publication of the identity of a child or young person as being a victim or witness in connection with an offence alleged to have been committed by a young person applies to this judgment. IN THE SUPREME COURT OF NEWFOUNDLAND AND LABRADOR COURT OF APPEAL BETWEEN : D.W.

APPELLANT AND : HER MAJESTY THE QUEEN RESPONDENT Coram: Green, C.J.N.L., Welsh and White, JJ.A. Court Appealed From: Provincial Court of Newfoundland and Labrador Youth Court 0110Y00142001/02 Appeal Heard: January 18, 2011 and February 9, 2011 Judgment Rendered: January 18, 2011 and February 9, 2011 (Orally) Reasons for Judgment filed: March 2, 2011 Reasons for Judgment by Welsh, J.A. Concurred in by Green, C.J.N.L. and White, J.A.

Counsel for the Appellant: Jennifer Curran Counsel for the Respondent: Sheldon Steeves and Elaine Reid Welsh, J.A.: [1] D.W., a young offender, pleaded guilty to and was convicted of robbery. He was sentenced to six months secure custodyfollowed by a supervision order for three months and probation for twelve months. The focus of the appeal against sentence is whetherthe trial judge erred by failing to consider sentencing options other than secure custody. [2] At the hearing in this Court, leave to appeal was granted, the appeal was allowed and the sentence was set aside.

The hearingwas adjourned to permit time for preparation of a more detailed pre-sentence report. The final disposition is: D.W. was sentenced to fourmonths deferred custody and supervision, with conditions as set out below, and sixteen months probation with the same conditions. Aswell, D.W. was ordered to pay restitution to the complainant in the amount of $300 within one month. The weapons prohibition orderhas been varied from a lifetime prohibition to two years. The DNA order made by the trial judge was affirmed. Following are thereasons for these decisions.

BACKGROUND [3] The Crown provided the factual background by reading into the record a portion of the complainant’s statement. Theincident occurred on April 17, 2010 after D.W. encountered the complainant and his friend at a coffee shop: … When we went in and sat down this guy came over and sat near us and he kept asking me about the chain around my neck. I knowthe guy is [D.W.], I knew him from school. We went to Mount Pearl Intermediate together for two years. [D.] seemed like he was onsomething, like drugged.

He said that he was loaded. [D.] asked me twice where I got my chain and then like four times how much Ipaid for it. I wouldn’t tell him how much it was worth but I did tell him I got it from Crescent Jewelers. My friend [K.] and I decided toleave and go back to the party and when [K.] looked back he seen [D.] and one of his friends following us. [K.] and I took off runningtrying to get back to the party and [D.] and his friend ran after us.

When I got to the intersection of Nelder Drive and O’FlahertyCrescent in Mount Pearl, [D.] tackled me to the ground. [D.] ended up on top of me and we ended up kind of wrestling. I was trying tofight back. [D.] was hitting me and trying to get at my chain and with all the commotion I don’t know exactly where he hit me but I didfeel him hit my face. Eventually [D.] got the chain off my neck. It took a while.

I guess ‘cause my jacket was zipped all the way up andthen he stood up. … The complainant and his friend then fled as did D.W. and his friend. [4] In the result, the complainant lost his chain, his jacket and jeans were damaged and he suffered scrapes, scratches andbruising which caused him pain and discomfort together with psychological trauma for some time after the incident. The chain was notrecovered. [5] D.W. was sixteen years old both at the time of the offence and when he was sentenced. He was living at home, not attendingschool, but was employed.

He had a prior conviction for robbery when he was thirteen years of age. For that offence, he was sentencedto twelve months probation, which he completed with no violations, and twenty hours community service. [6] In his oral decision, the trial judge commented on the seriousness of the offence by referring to significant sentences that mayhave been imposed had D.W. been an adult. He mentioned as aggravating factors the violence of the offence and D.W.’s previousconviction.

As well, the judge noted that D.W. had not made restitution and that he could not rely on the fact that he had been drinkingbecause, at his age, he should not have been drinking alcohol in any event. The judge spoke of the need for public confidence in theadministration of justice, and said: … And if I were to let you walk out of here today with a slap on the wrist then I think I would be undermining confidence in theadministration of justice ….

The trial judge then concluded: Now, I don’t think Deferred Custody in the circumstances involving personal violence in a case like this is the message that should go tohim or to the community. You’re sentenced to six months in Secure Custody. You’ll [sic] be followed by a three month CommunitySupervision. I’m going to put you on Probation for a year following. … ANALYSIS Leave to Appeal [7] Leave to appeal was required because this is an appeal as to sentence only (section 37(1) of the Youth Criminal Justice Act(the “Act”) and section 675(1)(

b) of the Criminal Code). The test to be applied is whether the appeal is “frivolous in the sense of havingno arguable basis or sufficient merit” (R. v. Jesso (2008), 2008 NLCA 30 , 276 Nfld. & P.E.I.R. 147 (NLCA), at paragraph 13;R. v. Perrier (2009), 2009 NLCA 61 , 293 Nfld. & P.E.I.R. 92 (NLCA), at paragraph 23). Leave was granted because theappeal raised substantial questions as to whether the trial judge erred in principle by failing to apply

section 39 of the Act which sets outrequirements to be satisfied before a custody order may be made. The Appeal [8] I begin with a review of the relevant portions of the Act. The purpose of sentencing under the Act is to “hold a young personaccountable … through the imposition of just sanctions that have meaningful consequences” which promote rehabilitation andreintegration of the youth into society (section 38(1)). Pursuant to section 38(2)(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 similarcircumstances”. [9] The Act specifies that “all available sanctions other than custody that are reasonable in the circumstances should beconsidered for all young persons” (section 38(2)(d)).

In addition, the sentence must “be the least restrictive sentence that is capable ofachieving the purpose” of sentencing under the Act, “be the one most likely to rehabilitate the young person”, and “promote a sense ofresponsibility in the young person, and an acknowledgement of the harm done to victims and the community” (section 38(2)(e)). Deterrence, general or specific, is not a factor to be considered (R. v. B.W.P.; R. v.

B.V.N., 2006 SCC 27 , [2006] 1 S.C.R. 941,at paragraphs 2 to 4). [10] The court is authorized to commit a young person to custody only in limited circumstances, one of which is where the youngperson has committed a violent offence (subsection 39(1)). That provision addresses eligibility for, but not the appropriateness of, anorder for custody in a given case.

Section 39(2) specifies that a custodial sentence may not be imposed “unless the court has consideredall alternatives to custody raised at the sentencing hearing that are reasonable in the circumstances, and determined that there is not areasonable alternative, or combination of alternatives, that is in accordance with the purpose and principles set out in

section 38”. (See:R. v. C.D.; R. v. C.D.K., 2005 SCC 78 , [2005] 3 S.C.R. 668, at paragraph 21.) [11] Three kinds of custody orders may be made under the Act: secure, open or deferred. A deferred custody order is not availablewhere the young person has committed a serious violent offence (section 42(5) of the Act). However, that exception applies only where,upon application, the offence has been designated a “serious violent offence”. In R. v. C.D.; R. v.

C.D.K., Bastarache J., for the majority,commented: [21] Although the definition of “serious violent offence” is relatively straightforward, even if a young person’s actions would appearto satisfy it – i.e. even if a young person causes or attempts to cause serious bodily harm in the course of committing an offence – it doesnot automatically follow that he or she has committed a “serious violent offence”.

Instead, pursuant to s. 42(9) of the YCJA, the Crownmust apply to have an offence designated as a “serious violent offence”, and the youth justice court to which the application is made isrequired to hold a hearing before it makes its decision [authority omitted]. [12] As to the case now before this Court, no application was made to have the offence designated a serious violent offence, nohearing on the point was held and no designation was made.

Accordingly, a deferred custody order would be an available option. [13] Where, as in this case, a violent offence, which has not been designated a serious violent offence, has been committed, thesentence may include any of the three types of custody. The definition of “violent offence” was discussed in detail in R. v. C.D.; R. v.C.D.K. Bastarache J. concluded: [87] … I am of the view that, for purposes of s. 39(1)(

a) of the YCJA, the term “violent offence” must be defined as an offence in thecommission of which a young person causes, attempts to cause or threatens to cause bodily harm. … [14] Where a custody order is an available sentencing option,

section 39 of the Act sets out factors to be considered:

(3) In determining whether there is a reasonable alternative to custody, a youth justice court shall consider submissions relating to (

a) the alternatives to custody that are available; (

b) the likelihood that the young person will comply with a non-custodial sentence, taking into account his or her compliance withprevious non-custodial sentences; and (

c) the alternatives to custody that have been used in respect of young persons for similar offences committed in similar circumstances.

(4) The previous imposition of a particular non-custodial sentence on a young person does not preclude a youth justice court fromimposing the same or any other non-custodial sentence for another offence.

(5) A youth justice court shall not use custody as a substitute for appropriate child protection, mental health or other social measures.

(6) Before imposing a custodial sentence under

section 42 (youth sentences), a youth justice court shall consider a pre-sentence reportand any sentencing proposal made by the young person or his or her counsel. …

(9) If a youth justice court imposes a youth sentence that includes a custodial portion, the court shall state the reasons why it hasdetermined that a non-custodial sentence is not adequate to achieve the purpose set out in subsection 38(1), … [15] In this case, in imposing an order for secure custody, the trial judge referred to the seriousness of the offence, D.W.’s previousconviction, his failure to make restitution, and the effect on confidence in the administration of justice if D.W. received only “a slap onthe wrist”.

Without addressing the alternative forms of custody, he simply concluded that a deferred custody order is not “the messagethat should go to [D.W.] or to the community”. [16] The trial judge did not explain, as required by section 39(9), why a non-custodial sentence would be inadequate to achieve thepurpose set out in section 38(1) of the Act, nor why he considered secure custody to be the least restrictive sentence (section 38(2)(e)(i)).

Section 38 does not refer to confidence in the administration of justice or the message the sentence would send to the community as arelevant consideration. Rather, sentencing under the Act focuses on the individual young person and how best to achieve the statedobjectives of the Act in the particular circumstances. Further, the trial judge, without explanation, simply concluded that deferredcustody would not “send the right message”. There was, in fact, no discussion of available alternatives and why they should bedismissed as inappropriate. Finally on this point, I do not accept the submission of Crown counsel that the trial judge’s comments should

be construed as being directed to holding D. accountable and imposing meaningful consequences. Those factors, which are relevant considerations, must be assessed in the context of the purpose of sentencing under the Act including the requirement that the sentence be the least restrictive one that is most likely to result in rehabilitation and reintegration of the young person into society. [ 17 ] In the result, the trial judge erred by failing to comply with the requirements of

section 39 of the Act when sentencing D.W. to a term of secure custody. Accordingly, it was necessary for this Court to determine a fit sentence. A Fit Sentence [ 18 ] At the request of the Court and with specific reference to the requirements of

section 40 of the Act, a new pre-sentence report was provided. I note in passing the value and importance of ensuring compliance with

section 40 which sets out in detail what the contents of a report should include. The report provided to the trial judge was deficient. [ 19 ] The following sentence was imposed at the hearing in this Court:

(1) An order for deferred custody and supervision for a period of four months, subject to the following conditions: (

a) To comply with the required conditions, (

a) to (h), as set out in section 105(2) of the Act; (

b) To maintain his current or alternate employment subject to any direction or approval of the provincial director; (

c) To reside with his parents or at an other place specified by the provincial director; (

d) To abstain from the possession or use of alcohol; (

e) To abstain from the possession or use of non-prescribed controlled drugs or substances, and not to be in the presence of any person who has possession or is using such a substance; (

f) To comply with any direction from the provincial director, including attending and participating in any counselling, educational, recreational or other programs recommended by the provincial director; (

g) Subject to any direction from the provincial director, to maintain an application for admission to the Brother T.I. Murphy Centre, and to enrol in a program approved by the director if accepted for admission; (

h) Subject to any direction from the provincial director, to continue to attend and participate in counselling conducted by Gary Burt or such other person as directed by the provincial director; (

i) To provide an apology in writing to the complainant within seven days after the date of this order; (

j) To comply with any curfew as set by the provincial director; (

k) To refrain from any contact or communication with the complainant or any member of his immediate family and any other person identified in writing by the provincial director.

(2) An order for probation for sixteen months, subject to the same conditions as the deferred custody and supervision order.

(3) An order to pay restitution in the amount of $300 to the complainant within one month from the date of this order. The Court also indicated, without elaboration, that the trial judge’s decision to impose a weapons prohibition order and a mandatory DNA order would be affirmed. It was determined that the weapons prohibition order should be varied from a lifetime order to two years. The reasons for the above disposition follow. [ 20 ] Prior to obtaining judicial interim release, D.W. was detained in secure custody from October 5 to November 23, 2010.

At the hearing in this Court, counsel for D.W. submitted that it would be appropriate to convert the remainder of the six month secure custody order made by the trial judge into a deferred custody and supervision order, with conditions as proposed by Crown counsel. Counsel indicated D.W.’s willingness to pay restitution in the amount of $300.

Crown counsel recommended a six month open or deferred custody and supervision order, with probation. [ 21 ] The Court determined that, given the purpose of sentencing under the Act and the circumstances of this case, there is no basis on which to make an order for secure custody. That order would not be the least restrictive measure appropriate in the circumstances. Nonetheless, a period of custody was warranted. This was a violent offence, D.W.’s second serious offence, and the harm done to the complainant was intentional and not insubstantial.

Further, a period of custody is consistent with the sentencing proposals made by both the Crown and D.W.’s counsel. [ 22 ] Upon considering the options, the Court was satisfied that a deferred custody and supervision order would be consistent with the requirements of the Act. It was clear from the pre-sentence report that D.W.’s parents exercise sufficient control and influence over D. such that he is likely to comply with the conditions imposed by the Court. The parents are in a position to provide support and guidance, and appear to be committed to that responsibility.

D. pleaded guilty and has accepted responsibility for his conduct. Although this is a second offence, there was a significant gap of approximately three years between the offences. [ 23 ] The pre-sentence report was very positive. It included a hand-written note from D. indicating he has learned from the experience, that he is “truly sorry” for what he put the complainant and his family through, that he has changed his friends, and that the experience “really opened my eyes and what I did was inexcusable”. Also included with the pre-sentence report was a letter from D.’s

employer who wrote that D. has proven to be “an extremely hard working and honest colleague who has never once missed a scheduled shift and was always willing to come in early or stay late when the business requested his assistance”, that he has a “positive attitude” and “excellent work ethic”. While D. has quit school, he has applied for admission to an adult education institution.

D.’s conduct when serving his sentence from the previous offence and during his current judicial interim release indicate a likelihood that he will comply with the conditions attached to the deferred custody and supervision and probation orders. [ 24 ] For these reasons, the Court concluded that, while a period of custody was necessary in the circumstances, an order for deferred custody and supervision, together with a period of probation, with the conditions set out in the order, and an order for restitution would best work to achieve the purpose of sentencing under the Act.

With particular attention to rehabilitation and promotion of a sense of responsibility in D., the Court ordered that the deferred custody and supervision would be for a period of four months, followed by probation for sixteen months, both with conditions. In determining an appropriate period of supervision, consideration was given to D.’s age and to the period of time he spent in secure custody. [ 25 ] Finally, with respect to the weapons prohibition order, in imposing a lifetime prohibition, the trial judge stated, without more: … and you’ll be prohibited in accordance with

Section 109 of possessing a firearm, ammunition, explosive substance, crossbow, prohibited weapon or ammunition for life. [ 26 ] The trial judge erred by relying on

section 109 of the Criminal Code . The relevant provision is

section 51 of the Act.

Section 51, which provides for a mandatory prohibition order in specified circumstances, states in relevant parts:

(1) Despite

section 42 (youth sentences), when a young person is found guilty of an offence referred to in any of paragraphs 109(1) (

a) to (

d) of the Criminal Code , the youth justice court shall, in addition to imposing a sentence under

section 42 (youth sentences), make an order prohibiting the young person from possessing any firearm, cross-bow, prohibited weapon, restricted weapon, prohibited device, ammunition, prohibited ammunition or explosive substance during the period specified in the order as determined in accordance with subsection (2).

(2) An order made under subsection (1) begins on the day on which the order is made and ends not earlier than two years after the young person has completed the custodial portion of the sentence or, if the young person is not subject to custody, after the time the young person is found guilty of the offence. …

Section 51 provides for a minimum weapons prohibition of two years. Unlike

section 109 of the Criminal Code , there is no mandatory lifetime prohibition for a second offence. Another distinction between these provisions is that section 51(5) requires that reasons be given when an order is made under

section 51. [ 27 ] In this case,

section 51 is engaged because the offence falls within section 109(1) of the Criminal Code : (

a) an indictable offence in the commission of which violence against a person was used, threatened or attempted and for which the person may be sentenced to imprisonment for ten years or more, … D.W. was convicted of robbery. That offence is dealt with in sections 343 and 344 of the Criminal Code , which provide in relevant parts: 343. Every one commits robbery who … (

b) steals from any person and, at the time he steals or immediately before or immediately thereafter, wounds, beats, strikes or uses any personal violence to that person; … 344. Every person who commits robbery is guilty of an indictable offence and liable … (

b) in any other case, to imprisonment for life. [ 28 ] In the circumstances of this case, a prohibition order for a period of two years was determined to be appropriate. The factors that were considered in imposing a deferred custody and supervision order were applied in this determination. Further, while the offence involved a violent assault, no weapon was used or threatened. A two year prohibition is also supported by a review of the case law in which the minimum two year prohibition was imposed, including in circumstances where there were prior convictions. For example:

(1) In R. v. T. (C.J.) , 2010 MBCA 61 , the young person pointed a firearm at another individual. This was a sawed-off shotgun concealed but readily accessible under the youth’s jacket. The incident happened in a public place when there was high traffic in the area and the youth was intoxicated. He was on probation with a weapons prohibition at the time.

(2) In R. v. C.(J.) , 2010 SKPC 113 , the young offender struck the victim, who was intervening in a dispute between the offender and a third party, in the face with a jar of coins, causing the loss of an eye and permanent, disfiguring scarring.

(3) In R. v. C.(K.) , 2008 SKPC 80 , within twenty-four hours of his release on supervision after serving a period of custody, the young offender committed a robbery in which he took cash from a store clerk, whom he confronted when she was alone and cashing out at the end of the day. Within a week of his release he committed a break and enter by breaking a window and entering an apartment. He

frightened the lone occupant, but was apprehended while trying to escape. The offender was seventeen years of age at the time of the offence. He had a lengthy criminal record, including previous robberies.

(4) In R. v. C.(D.) , 2008 CarswellOnt 3972 (ONCJ) , the young offender was convicted of robbery. He lured a pizza delivery person to the rear of a building, grabbed him around the neck and held a knife to his stomach while demanding cash. The driver’s keys and $700 were taken together with the food. The offender was sixteen years of age and pleaded guilty.

(5) In R. v. B.(B.) , 2007 ONCJ 428 , the young offender pleaded guilty to and was convicted of robbery and assault causing bodily harm. In conjunction with others he entered a shed and demanded the contents of the victims’ pockets. When one victim was slow to comply, the offender struck him in the head with a hammer causing lacerations. The robbers left with money and personal property belonging to the victims.

(6) In R. v. F.(H.R.) , 2007 SKPC 6 , the 16 year old young offender pleaded guilty to three counts of robbery, one count each of possession of a firearm, uttering threats and being unlawfully at large. He had previously been subject to a weapons prohibition. [ 29 ] In the above cases, the offenders were sentenced to various periods of custody and probation. However, all received the minimum two year firearms prohibition under

section 51 of the Act.

SUMMARY AND DISPOSITION [ 30 ] For the above reasons, at the hearing in this Court, leave to appeal was granted and the appeal was allowed. The sentence imposed by the trial judge was varied such that D.W. was sentenced to four months deferred custody and supervision, with conditions as set out in paragraph 19, above, and sixteen months probation with the same conditions. As well, D.W. was ordered to pay restitution to the complainant in the amount of $300 within one month. While the DNA order made by the trial judge is affirmed, the weapons prohibition order under

section 51 is varied from a lifetime prohibition to two years. _____________________________ B. G. Welsh, J.A. I Concur: _________________________ J. D. Green, C.J.N.L. I Concur: ________________________ C. W. White, J.A.