R. v. Anderson, 2015 MBCA 30

Citation: R. v. Anderson, 2015 MBCA 30 Date: 20150402 Docket: AY14-30-08119 IN THE COURT OF APPEAL OF MANITOBA Coram: Chief Justice Richard J. Chartier Mr. Justice Marc M. Monnin Madam Justice Diana M. Cameron BETWEEN : HER MAJESTY THE QUEEN ) A. L. Sansregret and ) K. I. Dowle Respondent ) for the Appellant ) - and - ) C. R. Savage ) for the Respondent THOMAS MACKENZIE LEO ) GORDON ANDERSON ) Appeal heard: ) February 23, 2015 (Young Person) Appellant ) ) Judgment delivered: ) April 2, 2015 NOTICE OF RESTRICTION ON PUBLICATION: Pursuant to s. 110(2)(

a) of the Youth Criminal Justice Act , the prohibition on publication set out in s. 110(1) does not apply when the young person received an adult sentence. CHARTIER C.J.M. Introduction and Issues [ 1 ] This is a sentence appeal. [ 2 ] The young person pled guilty under the Youth Criminal Justice Act (the YCJA ) to one count of aggravated sexual assault and to one count of housebreak, enter and commit robbery.

At the time of the commission of the offences, he was three months shy of his 18th birthday. [ 3 ] The Crown felt that the maximum three-year YCJA youth sentence that could be imposed on the young person was not sufficiently long to hold him accountable for his actions. It applied under s. 64 of the YCJA for an order that an adult sentence be imposed on him. The judge granted the order and imposed an adult sentence of ten years’ imprisonment, apportioned as three years for the housebreak, enter and commit robbery and seven years consecutive for the charge of aggravated sexual assault.

He then credited the young person on a 1:1 basis for 773 days of pre-sentence custody. [ 4 ] The young person seeks leave to appeal and, if granted, appeals the sentence on two grounds. First, that the judge was wrong to impose an adult sentence on the young person; and second, that the adult sentence imposed was harsh and excessive. Factual Background [ 5 ] The facts are chilling. The 27-year-old victim was home alone one summer night when she heard a noise coming from the second bedroom of her ground-level apartment. She went to that bedroom and saw a man reach in the window. That man was the young person.

She pushed him back and then ran to a phone to call her husband. Undeterred, the young person then went to a window in another room and entered the apartment. While the victim was still on the phone with her husband, the young person proceeded to chase the victim. She ran screaming and fell. The husband could overhear the struggle. He called 911 and immediately left work for home. [ 6 ] The young person caught the victim and repeatedly punched her in an effort to subdue her. At one point she gave him

all the money in her wallet. She begged him not to hurt her. He pushed her to the floor and continued to hit her. He then forced her onher back, removed her pants and underwear and said: “Just let me love you.” She said: “You’re raping me.” He replied: “Just let merape you then.” He covered her mouth so she would not scream. While he was sexually assaulting her, the husband arrived home. Theyoung person stopped the attack and jumped out of a window, cutting himself in the process.

The police attended the scene shortlythereafter, followed the trail of blood and arrested him. [7] The judge was also told about other offences the young person committed the day before this incident, charges onwhich he had not yet been sentenced. At 3:30 a.m. he had broken into another nearby apartment, entering through an unlocked window. He stole a large amount of money, electronic equipment and women’s underwear. At one point, he stood in the doorway of the victim’sbedroom. When she awoke and screamed, the young person left without saying a word.

The judge found, and I agree, that what he didthe next day to the victim in this case was a marked and substantial escalation in his offending behaviour and the level of violence. [8] The victim in this case suffered extensive physical injuries which included multiple lacerations to her head and face, abroken finger and significant bruising all over her body. She also endures lasting mental trauma. Standard of Review [9] The decision to impose an adult sentence on a young person is governed by the same standard of review as a sentenceappeal for an adult (see R. v.

D.B., 2008 SCC 25 at para. 101, [2008] 2 S.C.R. 3; and R. v. H. (C.T.), 2015 MBCA 4 at para. 18). As wasstated in R. v. L.M., 2008 SCC 31 at para. 14, [2008] 2 S.C.R. 163, an appellate court must show “great deference” when reviewing asentencing decision. Upon the granting of leave, an appellate court can only interfere with a sentence in two circumstances: when thesentence is “demonstrably unfit” or when it has been arrived at as a result of an error in principle.

An error in principle includes failingto consider a relevant factor, taking into account an irrelevant factor, failing to give sufficient weight to a relevant factor oroveremphasizing an appropriate factor. See R. v. Shropshire, (SCC), [1995] 4 S.C.R. 227; R. v. M. (C.A.), (SCC), [1996] 1 S.C.R. 500; R. v. Rezaie (M.) (1996), (ON CA), 96 O.A.C. 268; and R. v. Solowan, 2008 SCC 62at para. 16, [2008] 3 S.C.R. 309. Analysis

i) First issue: was the judge wrong to impose an adult sentence on the young person? [10] The test to be applied and the factors to be taken into account by the judge when considering a s. 64 application arefound at s. 72(1) of the YCJA. After the charges were laid, this

section was amended. It was agreed by counsel that the following pre-amendment wording should be used in this case: Test — adult sentences 72(1) In making its decision on an application heard in accordance with

section 71, the youth justice court shall consider the seriousnessand circumstances of the offence, and the age, maturity, character, background and previous record of the young person and any otherfactors 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 thatthe 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 orderthat an adult sentence be imposed. [11] The onus of satisfying the court that an adult sentence should be imposed on a young person rests on the Crown (see s.72(2) of the YCJA). As this court recently stated in H. (C.T.) at para. 25, when attempting to satisfy the court of the appropriateness of anadult sentence for a young person under s. 72, there is no requirement of proof beyond a reasonable doubt, or of proof on a balance ofprobabilities (see also R. v.

A.O. et al., 2007 ONCA 144 at paras. 28-38, 222 O.A.C. 38). The “balance of probabilities” standard doesnot lend itself well to a s. 72 determination because the test involves more than simply balancing factors. Rather, the court is calledupon to exercise its judgment and make “a reasonable prediction of [the young person’s] future behaviour based on an evaluation of allthe evidence” (H. (C.T.) at para. 26). [12] In this case, the young person had submitted to the judge that a s. 42(2)(

r) intensive rehabilitative custody andsupervision (IRCS) youth sentence of two years of custody followed by one year of intensive supervision was sufficiently long to holdhim accountable for his actions. The Crown had argued that such a youth sentence would not be of sufficient length for this offender inlight of the seriousness of the offences as well as the age, maturity, character, background and previous record of the young person. [13] In granting the Crown’s request for an adult sentence, the judge noted that this was a serious and brutal attack thatoccurred at night in the home of the victim.

Critical to his finding that a youth sentence would not be of sufficient length to hold theyoung person accountable for his actions was that there had been a clear and substantial escalation in the use of violence from theprevious night (see para. 7 above). Unlike the prior day’s incident, the young person did not retreat when confronted: he entered the

home through another window and proceeded to unleash a reign of terror on the occupant of the home. [ 14 ] In my view, the judge’s reasons show a considered assessment of the factors to be taken into account when deciding whether to impose an adult sentence. They confirm that he carefully considered the numerous expert reports before him.

When reviewing the psychological and psychiatric reports, the judge came to the conclusion that the young person required extensive and long- term programming in either “psychiatric or psychological assistance, substance abuse, sexual abuse counseling, and lifestyle and social- skill building.” This conclusion arose in large part from the testimony of Dr. Garry Fisher, a longtime and respected psychologist with Youth Forensic Services. The judge noted that Dr.

Fischer acknowledged at the end of his examination that the young person: …. … [N]eeds counseling and mental health assistance, at least two years or more; and depending on further mental health diagnosis, in my opinion, perhaps significantly longer assistance for [the young person]. [emphasis added] [ 15 ] The judge’s reasons also speak about the young person’s rehabilitation and reintegration prospects: …. [The young person] was only three months shy of his eighteenth birthday. He was in almost constant breach of his probation orders and was on two probation orders at the time of the offence.

I conclude he remains a very high risk to re-offend generally and a high risk to re-offend in a sexual way. And although there’s been some progress in the last 20 months, it’s not sufficient for me to conclude that [the young person]’s risk has been reduced in any fashion. ….

He requires long-term and extensive intervention for a number of issues he faces, but I conclude, specifically, that a youth sentence of three years, even with the extensive IRCS report provided, and even with the pretrial custody, would not be a sufficient length to hold him accountable, nor to provide the long-term, and supervision and treatment he requires. [ 16 ] The judge also considered any systemic and personal effects the young person’s aboriginal background could bear on his culpability and level of moral blameworthiness.

He concluded that: [The young person], furthermore, has a high degree of moral blameworthiness and high moral culpability. Once confronted by the home dweller, he did not retreat but, rather, made a conscious effort to continue the break and enter and then made a conscious effort to beat her savagely and viciously and a conscious decision to sexually assault her savagely, and he did this all on his own.

There was intentional risk-taking and deliberate and long-term consequential harm that has occurred, that could and should have reasonably been foreseen by [the young person]. [ 17 ] Finally, the judge found that the Crown had rebutted the presumption of reduced moral blameworthiness and that, in this case, “no youth sentence, including the IRCS sentence, would be a sufficient length to hold [the young person] accountable for his actions.” [ 18 ] I have no difficulty in upholding the judge’s finding that the maximum youth IRCS sentence of three years was not long enough to achieve the accountability objectives recently explained by Steel J.A. in H. (C.T.) (at para. 26 ): For a sentence to hold a young person accountable, it must achieve two objectives: it must be long enough to reflect the seriousness of the offence and the offender’s role in it; and it also must be long enough to provide reasonable assurance of the offender’s rehabilitation to the point where he can be safely reintegrated into society.

Reasonable assurance does not mean proof beyond a reasonable doubt or absolute certainty. It means a reasonable prediction of future behaviour based on an evaluation of all the evidence. If the sentencing judge finds that a youth sentence would not be long enough to achieve both of these goals, then an adult sentence must be imposed (see R. v. Z.T.S. , 2012 MBCA 90 at para. 65 , 284 Man.R. (2d) 55 ). [ 19 ] In the end, the judge correctly identified and considered the s. 72 factors.

His prediction with respect to the young person’s future behaviour was based on an evaluation of the evidentiary record and was, in my view, reasonable. He w as satisfied that the Crown had successfully met its onus of rebutting the presumption of diminished moral culpability and that it would take more than three years to safely reintegrate the young person into the community. In light of all the evidence before him, I see no basis on which to interfere with the judge’s decision to impose an adult sentence. ii) Second issue: was the adult sentence imposed harsh and excessive?

[20] After concluding that a youth sentence would not be of sufficient length to hold him accountable for his actions, thejudge proceeded to hear submissions as to an appropriate adult sentence. Both the young person and the Crown asked the judge to viewthis incident as one continuing criminal transaction and to impose concurrent adult sentences for the housebreak, enter and commitrobbery, and the aggravated sexual assault. These offences each carry the same maximum adult sentence of life imprisonment. TheCrown submitted that a sentence in the range of 12 to 14 years was fit.

Counsel for the young person argued that a sentence in the rangeof seven to eight years was more appropriate. As stated earlier, the judge imposed a global adult sentence of ten years’ imprisonment forboth offences. [21] The young person argues that the judge erred in the approach he used to impose the adult sentence. First, he says thatthe judge erred in using the sentence he would have imposed on an adult offender with a record of violence as a starting point; and,second, that he failed to give appropriate consideration to YCJA sentencing principles.

The Crown submits that the sentence was withinthe range of sentences appropriate for this offender and these offences and that his decision is entitled to deference. [22] A fair reading of the judge’s reasons establishes that the judge made a balanced assessment of the young person’s sadand tragic background, his psychological problems, his need to obtain long-term treatment and the risk he presents should he be releasedback into the community too soon. Moreover, they speak powerfully about the horrific nature of his actions.

The judge also took intoaccount the mitigating and aggravating factors in addition to the Gladue factors (R. v. Gladue, (SCC), [1999] 1 S.C.R.688). Unfortunately and inexplicably, at the end of his reasons, the judge used a 15-year adult sentence starting point to arrive at theyoung person’s sentence.

He stated: My view is that if I were dealing with an adult -- and this is getting to how I have arrived at what I think is a fit and appropriate sentence -- if I were dealing with an individual, an adult, who came before the court with any type of record, particularly with a record forviolence, and committed this type of offence or these types of offences in the fashion that they were committed, I would suggest someonewho is adult, who had a record and a record for violence, would probably likely, in my view, be looking at a sentence in the vicinity of15 years. [emphasis added] [23] The judge then proceeded to discount the 15-year starting point by taking into account the circumstances of the youngperson and the fact that he was a youth when the offences were committed.

The judge does not offer any justification for his decision touse this approach, nor does he explain why he chose 15 years. [24] In my view, the approach used by the judge in the present case tainted his reasoning on sentence and cannot be allowedto stand. I find support for this conclusion in the fact that the Crown was unable to point to any case law where a youthful offenderreceived a ten-year sentence for similar offences. The determination of a fit sentence is a highly individualized process that takes intoaccount the specific circumstances of the offender and the offence(s).

While looking at what an adult would have received in this case isa valid consideration, it should not be used as a starting point. The error was exacerbated by the fact that he was comparing the youngperson to an adult who had a record of violence, when the young person’s prior offending conduct was limited to property-relatedoffences. His record did not include acts of violence against individuals. [25] I now turn to the appropriate disposition. [26] At the sentencing hearing, a great deal of time was spent on whether this was a classic judicially-defined home invasionor akin to one.

In Manitoba, such crimes attract sentences in the range of seven to ten years (see R. v. Pakoo (K.G.), 2004 MBCA 157,190 Man.R. (2d) 133). The judge held that this was not a home invasion because all of the prerequisites, such as the planning andpremeditation and the use of a weapon, were not present. Given that the Crown is not the appellant in this appeal, it could not appeal thejudge’s home invasion ruling per se. However, if an issue which has a bearing on an appellant’s ground of appeal is raised in firstinstance, any respondent may ask the appeal court to revisit that issue (see R. v.

Farrah (D.), 2011 MBCA 49 at para. 4, 268 Man.R. (2d)112). As Laskin C.J.C. explained in R. v. Gee, (SCC), [1982] 2 S.C.R. 286 (at p. 289): It is a well-established principle of our criminal law that a respondent to an appeal here is entitled to hold a judgment in his favour on anygrounds available to that respondent which were raised below and are accepted by this Court, notwithstanding that those grounds werenot supported below and the appellant has based the appeal here on completely different grounds. [27] In this case, the Crown did not raise the judicially-defined home invasion issue in its factum.

While both counsel wereasked to address this issue at the appeal hearing, I think it best to leave it to a time when the argument is more fully before this court. However, both counsel did acknowledge that this was a statutory home invasion as defined under s. 348.1 of the Criminal Code. Thatsection reads as follows: Aggravating circumstance — home invasion 348.1 If a person is convicted of an offence under

section 98 or 98.1, subsection 279(2) or

section 343, 346 or 348 in relation to a

dwelling-house, the court imposing the sentence on the person shall consider as an aggravating circumstance the fact that the dwelling-house was occupied at 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. [28] A home invasion is an aggravating factor because any unauthorized intrusion into someone’s home runs counter to oneof our society’s basic principles that “one’s home is one’s castle.” As was explained by Dickson J. (as he then was) in Eccles v. Bourqueet al., (SCC), [1975] 2 S.C.R. 739 (at pp. 742-43): ….

For these principles, we go back to vintage common law, to 1604, and Semayne’s Case [77 E.R. 194], in which the principle, sofirmly entrenched in our jurisprudence, that every man’s house is his castle, was expressed in these words: “That the house of every oneis to him as his castle and fortress, as well for his defence against injury and violence, as for his repose …”. …. [emphasis added] [29] The home should be a place which gives one and all security from crime and when that sanctity is breached, it will beviewed as an aggravating factor.

Unlike judicially-defined home invasions which carry a focussed range of seven to ten years’imprisonment, the range for statutorily defined s. 348.1 home invasions is so wide that it has little value. As Steel J.A. wrote in R. v.McCowan (K.J.), 2010 MBCA 45, 251 Man.R. (2d) 295, it is generally acknowledged “that the cases in which s. 348.1 might be calledinto play are so diverse that case law is of limited assistance” (at para. 10).

Indeed, the case law submitted by counsel at this hearing(which involved housebreaks and sexual assaults by adults), showed adult sentences of four years (five cases), five years (one case), 12years (one case) and 18 years (one case). [30] Let me turn to what would be the appropriate sentence in this case. I will adopt as mine the judge’s analysis up to thepoint where he improperly applied the 15-year starting point.

As noted by the judge, the facts were “grave, serious, vulgar, andhorrific”; the young person was on two forms of probation when the attack in the home occurred; he had a related record of housebreakand enters; there had been a marked escalation in the seriousness of the young person’s conduct from the previous day’s housebreak; heremained a very high risk to re-offend generally and a high risk to re-offend in a sexual way; and, he had a high degree of moralculpability. [31] I agree that a fit sentence in this case requires emphasis on the principles of denunciation and deterrence; however,other sentencing principles are also relevant.

The judge imposing an adult sentence on a young person must keep in mind that the personwho committed the crime was under 18 years of age which, as a rule, entails a reduced level of maturity and a better prospect ofrehabilitation. This court has often stated that the fact an offender is a youthful offender is a mitigating factor and that rehabilitationremains a relevant consideration (see R. v.

Arbuthnot (S.M.), 2009 MBCA 106 at para. 37, 245 Man.R. (2d) 244). [32] While the young person’s own potential rehabilitation and reintegration into society requires a significant prison term, Iam of the view that an adult sentence of eight years, concurrent on both counts, properly takes into account the circumstancessurrounding this horrible crime and exemplifies the necessary balance and restraint for this young offender. [33] In the result, I would grant leave to appeal the sentence. I would deny the young person’s request to set aside the adultsentence.

While I would uphold the judge’s decision to impose an adult sentence on the young person, I would vary the term ofimprisonment, prior to any pre-sentence custody credit, from ten years to eight years, concurrent on both counts. When he wassentenced, the Supreme Court of Canada had reserved its decision in R. v. Summers, 2014 SCC 26, [2014] 1 S.C.R. 575. In light of thatdecision, the Crown does not oppose the enhanced credit on a 1.5:1 basis. That credit would total three years and two months. All otheraspects of his sentence, such as the weapons prohibition and the DNA and SOIRA orders remain the same. C.J.M.

I agree: J.A. I agree: J.A.