R. v. A.B., 2012 MBCA 25

Citation: R. v. A.B., 2012 MBCA 25 Date: 20120312 Docket: AY 11-30-07619 IN THE COURT OF APPEAL OF MANITOBA Coram: Madam Justice Barbara M. Hamilton Mr. Justice Martin H. Freedman Mr. Justice Richard J. Chartier BETWEEN : ) A. Y. Kotler HER MAJESTY THE QUEEN ) for the Appellant ) Appellant ) R. J.

Janis ) for the Respondent - and - ) ) Appeal heard and B. (A.) ) Decision pronounced: ) March 9, 2012 (Young Person, Accused) Respondent ) ) Written Reasons: ) March 12, 2012 NOTICE OF RESTRICTION ON PUBLICATION: No one may publish any information that could identify a person as having been dealt with under the Youth Criminal Justice Act , S.C. 2002, c. 1 (see s. 110(1) ). CHARTIER J.A. 1 Leave to appeal sentence was granted at the conclusion of the hearing and the sentence was varied.

These are our reasons. 2 The Crown sought leave to appeal from the sentence of two years’ supervised probation imposed on the young person for one count of robbery and three counts of failing to comply with undertakings. The young person had spent approximately three months in pre-sentence custody. It was uncontested that the robbery was a “serious violent offence” as defined under the Youth Criminal Justice Act (the YCJA ). 3 The facts surrounding the robbery offence are serious and troubling.

At the time of the robbery offence, the young person was a heavily intoxicated 15-year-old who was armed with a three-inch blade knife. Without provocation, she attacked a 22-year- old woman who was out walking her dog at 10:20 p.m. She grabbed the victim by the hair and demanded money. Despite the fact the victim told the young person that she would give her the money, she continued to attack her. Fearing the worst, the victim resisted. The young person then produced the knife and stabbed the victim twice, just under the mouth and below an eye, causing two puncture cuts.

The young person kept attempting to stab her, at one point dragging the blade of the knife across the victim’s neck, causing a four-inch cut. In the end, the victim was able to subdue the young person and call the police. 4 The cuts caused by the young person, while fortunately not life threatening, did leave scars on the victim ’ s face and neck.

Not surprisingly, the impact on the victim was significant, leaving her scarred both physically and emotionally. 5 The Crown argues that the two-year probationary sentence fails to reflect the need for meaningful consequences proportionate to the nature and gravity of the offence. It submits that the sentencing judge ’ s overemphasis on the impact of the young person ’ s substance abuse issues led him to impose an unfit sentence. 6 Our court has held that the standard by which we are to review a sentence appeal under the YCJA is the same as for adults (see R. v.

D.J.M. , 2007 MBCA 98 at para. 7 , 220 Man.R. (2d) 88 ). Great deference is owed to the sentencing decision. An appellate court will only intervene if the sentencing judge errs in principle or arrives at a sentence which is demonstrably unfit. However, while the standard of review is identical to that for adults, the sentencing principles are not. The youth sentence will be reviewed on appeal through the lens of the sentencing purposes and principles set out in the YCJA . 7 The sentencing judge was faced with a difficult task.

Before him was a young person who had no prior record or history of violence, yet had committed this vicious and unprovoked attack on an innocent bystander. The sentencing judge also knew that she was having significant trouble following court orders. Indeed, the young person, since her arrest and release on the robbery charge, had been rearrested on three separate occasions for failing to respect her conditions of release. She had not been released

following the last set of breach charges. 8 The Crown asked for a 15-month custody and supervision order, followed by probation, while counsel for the young person submitted that she had spent enough time in custody (the three-month period of pre-sentence custody) and that only a strict probationary sentence, in line with the plan presented to the sentencing judge, should be imposed. 9 The sentencing judge recognized the gravity of the robbery offence.

He also recognized that, while the YCJA has a significant rehabilitative focus, the sentence had to hold the young person accountable through the imposition of just sanctions that had meaningful consequences for the young person.

He kept asking himself how a probationary sentence would “ reflect a meaningful consequence for the gravity of the robbery offence. ” While he never did answer that question directly, he did conclude, immediately before imposing the two-year probationary sentence, the following: Returning to the Crown ’ s concern about the random violence and the degree of violence, is there any doubt that without abusing drugs or alcohol or both on that day, there really would have been no violence ? There would have been no court case like this one.

And I don ’ t think there is any doubt, as well, that you are quite capable of learning something from the plight of your victim so that you won ’ t victimize again. [emphasis added] 10 The forensic and the pre-sentence reports before him showed that the issues this young person had to overcome were more complex and multifaceted than any singular issue. The young person was dealing with numerous other issues in addition to the substance abuse - anger management problems, depression, family concerns and recurring violent urges.

In our view, the sentencing judge ’ s focus on the substance abuse issue as the principal, if not sole, cause for the knife attack led him into error. This error, in turn, caused him to impose an unfit sentence. 11 In our opinion, in light of the gravity of the offence and the problematic non-compliance with court orders, a more structured and gradual reintegration of this young person would better meet the purposes and principles of sentencing under the YCJA .

The pre-sentence report explained that while in custody, the young person had started to talk about and address these issues, that she did well in school and that she was interested in obtaining counselling. The report also made clear that while out on release, she continued to abuse alcohol and drugs and her threatening behaviour persisted. 12 While a sentencing judge cannot predict future conduct, the young person’s numerous instances of non-compliance would be a strong indicator that she may not be willing or able to abide by any conditions of probation.

At the appellate level, unlike a sentencing judge, we have the benefit of hindsight. We now know, on appeal, that the young person did not follow the youth sentence and has since been arrested and pled guilty to new breach charges arising out of three different incidents. 13 In our view, in the circumstances of this case and after taking into account her time in pre-sentence custody, a graduated sentence achieves the youth sentencing purposes and principles of rehabilitation, reintegration and holding this young person accountable through meaningful sanctions. 14 Leave to appeal sentence is granted.

The sentence is varied to a nine-month custody and supervision order involving three months of secure custody, three months of open custody and three months of community supervision, followed by one year of supervised probation on the same terms as those imposed by the sentencing judge. J.A. I agree: J.A. I agree: J.A.