C.R. 151471 IN THE SUPREME COURT OF NOVA SCOTIA HER MAJESTY THE QUEEN vs. NATHAN PETER DYKSTRA SENTENCING DECISION HEARD: at Halifax, Nova Scotia, before the Honourable Mr. Justice Jamie W.S. Saunders on June 10, 1999 DECISION June 10, 1999 (Orally) COUNSEL: John Scott, Esq., for the Crown Deirdre Murphy for the Accused SAUNDERS, J.: (Orally) Mr. Nathan Peter Dykstra elected trial by judge alone on this charge of robbery. presided at your trial April 22 and 23, 1999. You took the stand in your own defence. was satisfied based upon all of the evidence presented as to your guilt on the charge on the Indictment and remanded you into custody pending your sentence this morning. For the reasons that recall describing in detail at the time of your conviction was not left with any reasonable doubt that you and the four other young men described by counsel left Trisha Fudge’s apartment intending to go in search of someone to rob and to steal what you could of value. was satisfied that you all waited together in the dark by wall of Eaton’s parkade at the Halifax Shopping Centre to see who might happen to pass by as mark. Upon seeing Mr. Daniels you chased after him and ran him down and proceeded to beat him with kicks and punches while stealing his belongings. Mr. Daniels tried to defend himself but he was no match against the five of you. Included among the items stolen from Mr. Daniels were his leather university jacket, his keys, his wallet containing money and various credit cards, gold bracelet, matching gold necklace with cross, ring bearing the Lebanese cedar and Longine watch. Mr. Daniels described the jewellery taken from him that night as having value of $7,000.00. Of those items the only things of value recovered and returned to him upon the evidence before me were his Visa card, his MSI card, and his university jacket. Mr. Daniels was badly beaten by you and the four others who joined you in that cowardly and senseless attack. When he made it home and aroused his sister, the sight of him and his injuries made her vomit or want to. They called the police and he was taken to hospital. Photos were taken two days after the robbery. Those photos were introduced in evidence and showed much of the physical damage Mr. Daniels suffered. His injuries included serious damage to his left eye and eye socket, severe abrasions when the skin on his face was scraped on the pavement during the course of the robbery, bruising to his ribs, shoulder blades and waist, an imprint on the right side of his skull said to have been made by the sole of shoe, serious discolouration behind his right ear when people tried to tug the leather jacket up over his head, and friction burns to his waist, said to have been caused when people tried to roll him over by yanking on his jeans. Fortunately for Mr. Daniels and fortunately for you, none of those injuries proved to be life-threatening, nor apparently left Mr. Daniels with any permanent or debilitating injury. As Mr. Scott has indicated, robbery is most serious offense. In Section 344 of the Criminal Code Parliament has decreed that anybody found guilty of robbery may be liable to imprisonment for life. Many of the principles of sentencing that have guided this Court over the years are now codified in Section 718 and following and have taken all of those into account in your case. Protection of the public is the primary objective. In crimes of violence, which this is, deterrence of both you and of people who may be so inclined are given the greatest emphasis in attaining that objective. have considered all of the cases Ms. Murphy included in her most helpful pre-hearing brief. For your benefit want to refer to extracts from three of those cases. am going to take them chronologically, the oldest being comments of Mr. Justice Jones writing for the Appeal Division (as it then was) in case called The Queen v. Tarbox. Among other things, when dealing with young woman with no previous record Justice Jones commented: “The primary consideration must be deterrence. This Court has repeatedly pointed out the serious nature of the offense of robbery.” The Court affirmed term of 30 months’ imprisonment in federal institution. Then want to refer to the decision of the Court of Appeal as it now is in the Emmerson case, decided in 1993. Justice Matthews observed: “This was crime of violence as such the overriding consideration must be deterrence both specific and in particular general.” And he quoted from previous comments of the then Chief Justice of Nova Scotia in case called The Queen v. Hingley where MacKeigan, C.J.N.S. said: “We must begin with the premise that robbery with violence requires strongly deterrent sentences of imprisonment.” And finally, Mr. Dykstra, would refer to the same decision cited by your counsel, it being the most recent judgment of the Court of Appeal in the case of The Queen v. Izzard, judgment handed down in January of this year and in particular two observations of now Chief Justice Glube. First where she remarked at p. 10: “I accept the principle that each case must be examined individually to arrive at the appropriate sentence. However, would find the circumstances here are not so exceptional and mitigating that the Court can ignore the benchmark of sentence of two but more often three years.” And finally, at the bottom of p. 11 of her judgment where she stated: “I would impose two year term with two years’ probation. leave the two years’ probation in place as the respondent, that being the accused, will benefit from the supervision in restructuring his future. Probation imposes level of control over Mr. Izzard for longer period than just two years’ incarceration would alone. This will equate closer to sentence of three years or more and will assist him in maintaining the goals he said he needs to stay out of trouble.” Now in deciding what is proper and fit sentence in your case have tried to apply the principles from those cases as well as counsels’ careful submissions this morning, the content of the presentence report to which will refer in moment, and those features of your case that can be considered aggravating and mitigating. am going to start with the factors consider to be the most aggravating. First, the randomness of the attack. You and these four other young men went out as group looking for mark. Mr. Daniels, your victim, happened to be in the wrong place at the wrong time. Second, consider an aggravating feature to be the frequency of such attacks and such robberies. Since your conviction by me in April recall three other newspaper accounts of similar crimes and amazingly one almost identical incident described in the paper at the very same location within week of my conviction of you. Third recall that you were the eldest among this group of five. You claimed the need for money quickly and by your own evidence you were willing to get it by unlawful means. One can reasonably infer from the evidence before me that it was on account of your suggestion and encouragement that this crime occurred. And fourth, the aggravating feature that want to emphasize is the sheer unfairness of it all. It used to be that fights were settled with fists between two people, one against the other and the altercation usually ended when one person gave up or other people intervened or the police arrived. That old equation seems to be skewed. Now too often the attacks involve others three, four, five or more people against one, and weapons or kicks to the head while the victim is down or hurt or outnumbered and no longer able to defend himself. And here the evidence proves at least one kick to Mr. Daniels’ head that left that imprint of the sole of the shoe on the right side of his skull, and knife held to his throat by one of your gang. While cannot say to what exact degree you were involved personally in administering these particular assaults upon Mr. Daniels, you were there robbing him with your friends. Those are features that find especially troubling in your case. And they are circumstances that this community through its courts seeks to denounce and deter. Let me now turn, Mr. Dykstra, to those features consider to be mitigating circumstances in your case. First agree with Ms. Murphy that there is no evidence before the Court of any careful planning in this crime. Secondly when look at the content of the presentence report it is generally positive notwithstanding the very poor upbringing you “enjoyed” in various homes in your youth. As Ms. Murphy pointed out, you were taken from your family home at age 11 and then shunted among series of foster or group homes or placed in situation with stepmother where you were abused by her. There was nnever any kind of adult authority or support or example and you fell in with bad crowd. take into account the fact that your Uncle Tom has been here throughout your trial and is here this morning for your sentence hearing and accept the representations made by your lawyer, Ms. Murphy as to the support and example he has provided and continues to provide to you. Despite all these negative features in your life you have managed to complete at least high school education and one year of university, all to your credit. take into account your relative youth at the time of this offense, the fact that you were 23 years of age at the time. also take into account that you have no previous record for robbery or crimes of violence. When look at the record passed to me this morning by Mr. Scott, the general themes appearing in all of these offenses, either as young offender or as an adult, are dishonesty, offenses of &E and theft which depict someone who at least at that stage of your life, was content to take things that didn’t belong to you, or reflect dishonesty on your part either to others or to the Court. When you get out of prison you will have to continuously demonstrate to other people that all of that is part of dark history of your youth and that you are quite different person upon your release. Your success in that respect will be entirely up to you. consider as other mitigating features the fact that you have considerable potential to rehabilitate yourself and there have been no other convictions in recent years. Ordinarily, Mr. Dykstra, person in your position would face imprisonment for more than two years and therefore probation added on would not be an option. Initially when reflected upon your case between April and today had in mind sentence of something close to two and half years with some credit for your time in remand pending your sentence. But that would have still left you with period of imprisonment of more than two years, thus depriving you, and depriving the community of the benefits that can be obtained from meaningful and properly supervised period of probation. I have come to the conclusion, Mr. Dykstra, that you are presently at a crossroads. You have some talent and some motivation to become reintegrated into society as a productive member of this community. I find that you will benefit from supervision following your release from prison which apparently has been so lacking to this point. In this way the interests of this community in the protection of its citizens from crimes such as these will be achieved. agree with the recommendations made by Mr. Scott on behalf of the Crown and Ms. Murphy on your behalf that fit and proper disposition in your case is sentence of two years in federal penitentiary to be followed by two years of probation. am going to specify some specific terms of your probation in just moment but the consequences attendant upon your failure to comply with those terms will undoubtedly be explained to you by your counsel and will in any event be stated on the copy of the probation order. Mr. Dykstra, the compulsory terms of your probation order will be as follows: (1) Under s. 732.1(2) of the Canadian Criminal Code to keep the peace and be of good behaviour; (2) To appear before me following your release from prison with your probation officer so that can hear from you and the officer how and what you have been doing. II would expect that appointment before me in this Court to be at about the mid-way point of your probationary term. The scheduling of the precise date for that attendance is to be arranged between the probation service and the coordinators in these Law Courts; (3) That you will notify the probation officer in advance of any change of name or address and promptly notify your probation officer of any change of employment or occupation. In addition to those mandatory terms, Mr. Dykstra, impose the following additional terms. Firstly you will be obliged to report upon your release to your probation officer at such times and places as she or he may direct. Secondly, you will remain within the jurisdiction of this Court unless written permission to go outside the jurisdiction of this Court is first obtained from this Court. Thirdly, you will abstain from owning, possessing or carrying weapon. Next, you will be obliged to perform 180 hours of community service during your probationary period, performing such tasks and assignments as may be directed by your probation officer. Finally, in terms of other reasonable conditions impose the following order which has two parts to it. You are obliged to use best efforts to: (1) either find and keep employment during the course of your two years on probation, or (2) enroll in and complete courses towards your education, upgrading and job training. As well, pursuant to s. 100 of the Criminal Code impose ban for 10 years prohibiting you from possessing any firearm, ammunition or explosive device. J. CASE NO. VOL. NO. THIS INFORMATION SHEET DOES NOT FORM PART OF THE COURT'S DECISION. QUOTES MUST BE FROM THE DECISION, NOT THIS COVER SHEET. Her Majesty the Queen vs Nathan Peter Dykstra Justice Jamie W.S. Saunders Halifax, N.S. CR. 151471 LIBRARY HEADING HEARD: June 10, 1999 DECISION: June 10, 1999 (Orally) SUBJECT: Sentencing. Robbery. Section 344 of the Criminal Code. Benefits of incarceration followed by probation. Prospects for rehabilitation. SUMMARY: Twenty-three year old male offender convicted of robbery. He and four other young males attacked and robbed university student of jewellery and other valuables worth more than $7,000. Despite poor upbringing, abuse at the hands of his stepmother and being shunted among many foster homes the offender had completed high school and one year of university. Favourable pre-sentence report showed good prospects for rehabilitation. Accepted joint recommendation for two years’ imprisonment followed by two years of probation with strict terms including 180 hours of community service.
The offender was convicted of robbery. He and four other young men attacked and violently robbed a university student of jewellery and other valuables worth more than $7,000. Despite poor upbringing, abuse at the hands of his stepmother, and being moved from many foster homes, the offender had completed high school and one year of university. There was a favourable pre-sentence report suggesting good prospects for rehabilitation, and a joint sentence recommendation for two years' imprisonment followed by two years probation with strict terms, including 180 hours of community service. Accepting the joint sentence recommendation, that the offender is at a crossroads, and has the talent and motivation to become reintegrated into society as a productive member of the community, and who will benefit from a shorter term of imprisonment than is usual for this type of offence, combined with post incarceration supervision.