R v AMK, 2016 MBCA 87

Citation: R v AMK, 2016 MBCA 87 Date: 20160907 Docket: AY16-30-08546 IN THE COURT OF APPEAL OF MANITOBA Coram: Mr. Justice Alan D. MacInnes Madam Justice Diana M. Cameron Mr. Justice William J. Burnett BETWEEN : ) HER MAJESTY THE QUEEN ) K. D. Minuk ) for the Appellant Respondent ) ) J. L. Comack and - and - ) C. T. St. Croix ) for the Respondent A. M.

K. ) ) Appeal heard and (Young Person) Appellant ) Decision pronounced: ) September 7, 2016 ) 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 (see section 110(1)). Corrected Judgment: A corrigendum was issued on September 19, 2016; the corrections have been made to the text and the corrigendum is appended to this judgment. BURNETT JA (for the Court): [ 1 ] The appellant is a young, first-time offender who appeals sentences imposed pursuant to the Youth Criminal Justice Act (the YCJA ).

Leave to appeal the sentences was previously granted. [ 2 ] The background to the offences is set out in an agreed statement of facts which was filed at the sentencing hearing. Briefly stated, the facts are that on June 11, 2015, the appellant threatened to kill, and seriously assaulted, a fellow student at their high school. The appellant was arrested and released on an undertaking. On November 17, 2015, the appellant breached the conditions of her undertaking by returning to the high school, and she assaulted a second student.

The assaults had significant physical and emotional impacts on each of the victims and included many aggravating features. [ 3 ] On December 22, 2015, the appellant entered guilty pleas to one count of uttering threats, assault cause bodily harm and assault, and to two counts of failing to comply with her undertaking. [ 4 ] On January 20, 2016, the sentencing judge sentenced the appellant in the following manner: With respect to the utter threats, four days in custody; with respect to the June 2015 assault, six months in custody, or a hundred and eighty days; the November 2015 assault, three months in custody, or 90 days, and those are all consecutive.

And then consecutive to that, but concurrent on the breaches is a two year period of supervised probation.

… Accordingly, the total time in custody totals 274 days. I will give her credit for 64 days served, which leaves 210 days in custody going forward. You are therefore ordered to serve a hundred and forty days in custody, to be followed by 70 days, to be served under supervision in the community, subject to conditions. [ 5 ] The appellant submits that the sentencing judge failed to specify the level of custody and that the failure to do so is an error of law.

The appellant also submits that the sentencing judge erred in her treatment of the aggravating and mitigating factors. [ 6 ] The Crown concedes that the sentencing judge erred by failing to consider the appropriate level of custody, but says that the error did not affect the quantum of the sentences imposed, nor did it make the sentences unfit. [ 7 ] In our view, the sentencing judge failed to follow the required process for sentencing. On numerous occasions this Court has emphasized that a sentencing judge must impose a specific penalty for each offence and that failure to do so may amount to reversible error.

See, for example, R v Wozny (CP) , 2010 MBCA 115 at paras 63 , 68 and 73, 262 ManR (2d) 75. [ 8 ] In the present case, the sentencing judge failed to ascribe the actual penalty pertaining to each offence. While it is true that she specified the period of custody for each offence, she failed to comply with

section 88 of the YCJA which incorporates

section 24.1(4) of the Young Offenders Act , RSC 1985, c Y-1, and which requires the sentencing judge to specify the level of custody (open or secure) and to take into account certain factors ( see R v TRK , 2016 MBCA 14 at paras 12-13 , 326 ManR (2d) 27 ). She also failed to allocate the time spent in pre-sentence custody.

To compound matters, the sentences recorded in the endorsement of proceeding forms (commonly referred to as the disposition sheets) cannot be reconciled with the sentences imposed by the sentencing judge. [ 9 ] Notwithstanding these errors, we agree with the Crown’s submission that, having regard to the appellant’s high moral culpability, the seriousness of the offences, the needs and circumstances of the appellant, the forensic assessment (which concluded that the appellant is a high risk to reoffend without intervention), the interests of society and the harm to the victims, the length of the sentences imposed was necessary to achieve the objectives of the YCJA and should not be substantively interfered with. [ 10 ] Accordingly, having regard to

section 88 of the YCJA and

section 24.1(4) of the Young Offender Act , the appeal will be allowed and the sentence varied as follows: 1. Uttering threats—3 days (reduced from 4 days); 2. Assault cause bodily harm—180 days consecutive; 3. Assault—90 days consecutive; 4. Failure to comply with undertakings (2 counts)—2 years of supervised probation, concurrent to each other, but consecutive to the sentences described above. [ 11 ] The foregoing sentences are the appropriate sentences for each offence before taking into account the 64 days of pre- sentence custody.

Once that consideration is taken into account: 1. the sentence for uttering threats shall be 3 days; 2. the sentence for assault cause bodily harm shall be 138 days (i.e. 180 days less 42 days of pre-sentence custody) consecutive; 3. the sentence for assault shall be 68 days (i.e. 90 days less 22 days of pre-sentence custody) consecutive. [ 12 ] The total sentence is 209 days which will be served as 139 days in secure custody and 70 days of community supervision.

This sentence shall be followed by the 2-year supervised probation order (imposed by the sentencing judge) for the remaining 2 counts of failing to comply. [ 13 ] The sentences for uttering threats, assault cause bodily harm and assault have been fully served. The 2-year probation order for failure to comply with undertakings shall remain in place unchanged. JA JA JA

CREST COURT OF APPEAL PROVINCE OF MANITOBA WINNIPEG R3C OP9 CORRIGENDUM September 19, 2016 TO WHOM IT MAY CONCERN: Re: R v AMK 2016 MBCA 87 Docket No. AY16-30-08546 Released: September 7, 2016 The attached decision replaces the previous decision which was released September 7, 2016. In para 10, the words “the 273 days of custody” have been replaced with the words “the sentences described above”. Paras 11 and 12 in the previous decision are to be replaced with the following: The foregoing sentences are the appropriate sentences for each offence before taking into account the 64 days of pre-sentence custody.

Once that consideration is taken into account: 1. the sentence for uttering threats shall be 3 days; 2. the sentence for assault cause bodily harm shall be 138 days (i.e. 180 days less 42 days of pre-sentence custody) consecutive; 3. the sentence for assault shall be 68 days (i.e. 90 days less 22 days of pre-sentence custody) consecutive. The total sentence is 209 days which will be served as 139 days in secure custody and 70 days of community supervision. This sentence shall be followed by the 2-year supervised probation order (imposed by the sentencing judge) for the remaining 2 counts of failing to comply.