R. v. A.H., 2011 NLCA 25

Date: 20110419 Docket: 10/140 Citation: R. v. A.H., 2011 NLCA 25 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 : A.H.

APPELLANT AND : HER MAJESTY THE QUEEN RESPONDENT Coram: Welsh, Rowe and Harrington, JJ.A. Court Appealed From: Provincial Court of Newfoundland and Labrador St. John’s, NL Appeal Heard: April 14, 2011 Judgment Rendered: April 19, 2011 Reasons for Judgment by Welsh, J.A. Concurred in by Rowe and Harrington, JJ.A. Counsel for the Appellant: Michael Ralph Counsel for the Respondent: Sheldon Steeves

Welsh, J.A.: [1] A.H., a young offender, pleaded guilty and was convicted of armed robbery, mischief and breach of an undertaking. He wassentenced to six months secure custody, followed by three months open custody, four and a half months community supervision andtwelve months probation. He appeals the sentence on the basis that the trial judge failed to give reasons for his decision as requiredunder the Youth Criminal Justice Act. BACKGROUND [2] The trial judge accepted an agreed statement of facts, limited to the armed robbery charge, which included the followinginformation.

The armed robbery took place in the early morning hours of July 20, 2010 in a vehicle in which the complainant, who wasin the driver’s seat, had apparently agreed to sell drugs to A.H. and his companion. The drug deal did not go as planned by thetrafficker. A.H.’s companion got into the front passenger seat holding a large knife and demanding “everything you got, wallet andeverything”. A.H. got into the back seat holding “a short piece of metal in his hand variously described as a steel rod, piece of pipe andlooking like a bike kickstand”, and said, “Don’t make me start breaking shit”.

The complainant grabbed his wallet, jumped out of thevehicle and ran into a nearby fast food outlet to get help. He subsequently laid a complaint with the police. [3] A.H. and his companion stole 3.5 grams of marijuana, weigh scales, a “weed buster”, a .22 caliber semi-automatic rifle and75 rounds of ammunition from the vehicle. The rifle had no trigger lock and was stored in the trunk of the vehicle. A.H. said the riflewas taken by his companion and that he had suggested to his companion that it would not be a good idea to take the rifle. On August 12,2010, the rifle was turned over to the police.

A.H. played a role in facilitating this. There is no mention that the ammunition was alsorecovered. [4] The charges of mischief and breach of an undertaking arose from A.H.’s conduct at his home on September 9, 2010. A.H.’smother called the police to report that her son was in the home causing property damage, yelling and cursing, and that he was out ofcontrol. A.H. had broken a door frame, the door was off its hinges and the molding around the door was broken. His mother reported tothe police that A.H. was upset with her and that he was punching the cupboard and throwing things around the house.

She told thepolice, “I’ve warned [A.] that his behaviour would lead to him breaching his undertaking. When [A.] acts this way, he frightens me andI strongly feel as though [A.] has anger problems that he cannot control”. At the time, A.H. was subject to an undertaking to keep thepeace and be of good behaviour as a result of the armed robbery charge. ANALYSIS Leave to Appeal [5] 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). [6] At the hearing in this Court, leave to appeal was granted on the basis that the above test is satisfied, particularly given Crowncounsel’s concession in his written submission that the trial judge erred in principle because the reasons for sentence did not meet therequirements of sections 38 and 39 of the Youth Criminal Justice Act. Reasons of the Trial Judge [7] The relevant portions of the Act were recently reviewed by this Court in R. v. D.W., 2011 NLCA 21: [8] ...

The purpose of sentencing under the Act is to “hold a young person accountable … through the imposition of just sanctionsthat have meaningful consequences” which promote rehabilitation and reintegration of the youth into society (section 38(1)).

Pursuant tosection 38(2)(a), “the sentence must not result in a punishment that is greater than the punishment that would be appropriate for an adultwho has been convicted of the same offence committed in similar circumstances”. [9] The Act specifies that “all available sanctions other than custody that are reasonable in the circumstances should be consideredfor all young persons” (section 38(2)(d)).

In addition, the sentence must “be the least restrictive sentence that is capable of achieving thepurpose” of sentencing under the Act, “be the one most likely to rehabilitate the young person”, and “promote a sense of responsibility inthe young person, and an acknowledgement of the harm done to victims and the community” (section 38(2)(e)). Deterrence, general orspecific, 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 Crown

must apply to have an offence designated as a “serious violent offence”, and the youth justice court to which the application is made is required to hold a hearing before it makes its decision [authority omitted]. [8] In this case, while the armed robbery constituted a violent offence within the meaning of section 39(1), it was not declared a serious violent offence under section 42(5). Accordingly, it was open to the trial judge to make an order for secure, open or deferred custody. [9] Where a custody order is an available sentencing option,

section 39 of the Act sets out factors to be considered and the requirement to give reasons:

(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 with previous 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. …

(6) Before imposing a custodial sentence under

section 42 (youth sentences), a youth justice court shall consider a pre-sentence report and 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 has determined that a non-custodial sentence is not adequate to achieve the purpose set out in subsection 38(1), … [10] In this case, in his oral decision, the trial judge did not summarize his reasons for determining that a secure custody order was the least restrictive option (section 38(2)(e)), or that a non-custodial sentence would not be adequate to achieve the purpose of sentencing under the Act (section 39(9).

Nonetheless, a reading of the decision as a whole leads to the conclusion that, in fact, the relevant factors were considered and addressed by the trial judge. The requirement for reasons may be satisfied provided the trial judge’s analysis demonstrates that he turned his attention to meeting the purposes and requirements of the Act.

This may be achieved where the judge sufficiently identifies and discusses the evidence that forms the basis for a conclusion that a non-custodial sentence would be inadequate to achieve the purpose of the Act, and that secure custody would be the least restrictive option in the circumstances. It is, of course, preferable and prudent for a trial judge to track the language of the legislation, and to state the relevant reasons in

summary form. However, substantive compliance with the requirement for reasons is adequate. [11] It is on this basis that this case differs from R. v. D.W. In D.W. , there was insufficient information provided by the trial judge from which to determine his reasons for imposing an order for secure custody. [ 12 ] In the case now before this Court, the trial judge began with a statement of the purpose and principles to be applied in imposing a sentence under the Act. Using the language of

section 38, he said, at page 29 of the transcript of his oral decision: … Under the Youth Criminal Justice Act , I have to craft a sentence that holds the young person accountable for his actions and has meaningful consequences, but also takes into account the fact that there has to be rehabilitation and reintegration into the community because when someone is young, then the potential for them to change their behavior and improve is much, much greater than is with an adult.

I also have to promote the long term protection of the public by applying those principles that I’ve alluded to already and that’s how Parliament has determined I can best do that by keeping in mind those factors. … [ 13 ] The trial judge then stated the range of sentence an adult in similar circumstances would face, being imprisonment for three to four years for armed robbery. It is not an error for the judge to include this information provided it is used for the purpose set out in section 38(2), which states: (

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; … [ 14 ] The trial judge next referred to A.H.’s conduct leading to the charges of mischief and breach of an undertaking, as well as the seriousness of the armed robbery.

He noted, at page 30: … the consequences of your action and your behavior on the 9 th of September when you not only damaged the property of your mother’s home, but also breached the undertaking that the Court released you on, and that’s only a month earlier or less than a month earlier on August 14 th , 2010.

So the offences that you’re charged with particularly the robbery offence is a most serious one because it involves the use of weapons with a threat to cause harm to [the complainant]. … [ 15 ] The trial judge followed this with reference to some factors he described as mitigating circumstances, although he put these considerations in context, at pages 30 to 31: … I accept that mitigating your involvement in some degree is the fact that you’re described in the pre-sentence report or predisposition report as a follower, but when people combine their efforts to commit an offence, that makes it a little more serious and a little more dangerous because this is more threatening to the victim.

The consequences – the circumstances surrounding the commission of this

offence, in other words, involving a drug transaction that went wrong, the presence of weapons in particular the gun is extremely dangerous. There’s some indication, of course, that you tried to discourage your accomplice from stealing the gun from the car but nevertheless because as I say the both of you are there, then this gives you an empowerment and as the Crown describes it, makes you a party to the offence by enabling the theft of the gun to take place.

It is a mitigating factor, as well, and I take into account the fact that you assisted the police in having the gun returned; that’s an important thing that I’m taking into account today to – in crafting a sentence that I have to for you.

I’m encouraged by the fact that you expressed your regret about what happened, your remorse and your cooperation with the social workers, and in particular the worker who prepared the report and those who you have been working with since your arrest and the efforts that you’ve made toward your own rehabilitation, but I see some troubling things. … [ 16 ] The trial judge went on to discuss factors that are critical to his determination to order a period of secure custody, at pages 31 and 32: … I see the troubling things in blaming others for what you’re doing, the fact that you appear to be out of control in your home; your mother, she can’t control you anymore, the contact with your father has been minimal although I understand that of late, it’s been increased.

So those things give me cause for concern and the fact that you’re close to adulthood and unless you get your behavior under control now, I’m concerned that you’re going to be a serious threat to yourself and others out in society particularly if you continue with this [sort] of behavior. … [ 17 ] Prior to indicating the sentence he would impose, the trial judge said that he was acting to “best serve” the principles under the Act.

He went on to explain, at page 32: … I think that it could have been stated better that a short period in custody that I’ve described and sentenced you [to], the six months [secure custody] would reinforce the seriousness of the offences as stated in the pre-sentence report by Ms. Stevens, and give you the opportunity to work on the ongoing issues in your life that have been identified in the report.

The majority of the sentence with the following part of the sentence being the open custody that I’ve prescribed will continue to assist you with the reintegration back into the community and in the family home. … [ 18 ] The references to the pre-sentence report indicate that the trial judge was aware of the contents of the report and that the report was an appropriate consideration. For convenience, I repeat section 39(6) of the Act: Before imposing a custodial sentence under

section 42 (youth sentences), a youth justice court shall consider a pre-sentence report and any sentencing proposal made by the young person or his or her counsel. [ 19 ] A.H.’s needs and available services are discussed at pages 8 and 9 of the pre-sentence report: [A.] is a 17 year old who has many ongoing issues in his life which need to be addressed. Although he does not have any prior findings of guilt, his first offence is very serious and he does not appear to accept the seriousness of his actions.

Although cautioned several times by involved professionals and family of the importance of making positive choices and putting effort into life areas, his behaviors (not criminal) have worsened rather than improved with his reasoning being the level of stress he is under. It appears that everyone but [A.] is trying to help him through this difficult time and the more that is done for him, the more he expects or demands, especially in the home. [A.] blames this on his anxiety and depression.

He is a young man with a lot of potential but needs to be redirected in a structured environment where he can begin to work on his issues. [A.] is very anxious regarding going to any form of custody and has expressed thoughts of self harm should this occur. Should secure custody be considered, it is felt that a blended sentence may be beneficial with a short time in secure custody which would reinforce the seriousness of the offence plus give him the opportunity to work on the ongoing issues within his life.

The majority of his sentence being open custody would assist with his reintegration back into the community and the family home. There would be many services available in each facility with the ability to continue with his educational programs along with counseling. [A.] is getting close to his 18 th birthday and it is vital he does make some positive changes in his attitudes and behaviors before that time as if not, he would be at high risk to enter the Adult System. [ 20 ] In the

summary at pages 9 and 10 of the pre-sentence report, the author noted with respect to school, “there are issues with consistent attendance, lateness to class and lack of academic achievement”. With respect to his part-time job, the report states: “He is employed at Dominion and overall has done well there but as of late he has not reported as required thus resulting in his being taken off the

schedule until this can be addressed”. Regarding substance abuse, the report states: “[A.] has many ongoing issues which need to be addressed which include substance abuse, family relationships, and anger management”. As to A.H.’s behavior, the report states, at page 5: “His behavior at home has worsened and his relationship with his mother is at an all time low. He is increasingly demanding of her and becomes angry when she does not respond in the manner he feels she should”.

As to accepting responsibility for his actions, the report states, at page 6: “It is the consensus of all professionals involved with [A.] that it is questionable if he recognizes the seriousness and/or the possible consequences of his actions. Although [A.] does express remorse for his actions, wishes he had his time back and stated it will never happen again, he appears to be more focused on how his actions have impacted on his life.” [ 21 ] In

summary, the trial judge considered A.H.’s behaviour at home, and particularly the fact that he was out of control in that setting, which would, in the circumstances, explain rejection of deferred custody as an option.

Factors such as the seriousness of the offence and personal issues, particularly as identified in the pre-sentence report, such as anger management, the need for a structured environment, the availability of programs and so forth, together with the recognition in the pre-sentence report that at least a short period in secure custody would be an appropriate option explain the trial judge’s decision to impose a period of secure custody followed by a bridging period of open custody and community supervision.

While it would have been preferable for the trial judge to more directly address the rationale for the custodial sentence, the requirements of the legislation are met where that rationale is evident from a reading of the decision as a whole.

SUMMARY AND DISPOSITION

[ 22 ] The trial judge did not err by failing to give reasons for imposing a custodial sentence. Accordingly, leave to appeal having been granted, the appeal is dismissed. B. Gale Welsh, J.A. I concur: M. R. Rowe, J.A. I concur: M. F. Harrington, J.A.