J. THE COURT OF APPEAL FOR SASKATCHEWAN HER MAJESTY THE QUEEN CORAM: The Honourable Chief Justice Bayda The Honourable Mr. Justice Lane The Honourable Madam Justice Jackson COUNSEL: D. Rayner for the Crown, G. Josephson for the respondent. DISPOSITION: Appeal Heard November 10, 1994 Appeal Decided December 6, 1994 On Appeal From Youth Court Appeal File: 6451 Reasons by: The Honourable Madam Justice Jackson In concurrence: The Honourable Chief Justice Bayda and The Honourable Mr. Justice Lane Jackson J.A. This case concerns another young offender who stole cars in Regina in the summer of 1994. J.M. pled guilty to 16 counts of auto theft, one count of possession of stolen auto and one count of dangerous driving. He spent 13 days on remand and approximately two months under strict parental control on house arrest under s. 7.1 of the Young Offenders Act prior to receiving a disposition of six months\' open custody and two years\' probation on September 7, 1994. The Crown appeals the disposition arguing it is not fit having regard for the number of offences and the need to maintain the public\'s confidence in the administration of justice. Several features appear in this case which did not appear in R. v. B. (S.) et al. The first new issue is that, in addition to the large number of theft offences, J.M. used stolen vehicle in high speed chase with the police resulting in extensive damage to the vehicle. (This incident occurred after his period of co-operation with the police.) second new issue is the extent to which the Court should be influenced by disparity in dispositions among young offenders. This is raised because J.M.'s principal partner in these auto thefts was [T.D.] who received eight months open custody for some 19 auto thefts and attempts. ([T.D.]'s appeal was heard as part of [S.B.] et al.) third factor to be weighed, over and above those considered in [S.B.] et al., is that the learned Youth Court judge counted the time J.M. spent under house arrest as secure custody. Finally, we must consider the extent to which J.M. assisted the police. He spent three days with them solving other crimes, placing himself in other crimes and implicating others for which actions he received threats. J.M. stole his first automobile on January 1, 1994. The steering column was smashed, the ignition "cheated" and the car's contents stolen. The amount paid by Saskatchewan Government Insurance for damage to the car was $3,250 and, for the items stolen from the vehicle, $4000. J.M. admitted to stealing the vehicle along with [T.D.] J.M. committed no further offences until April 30, 1994, when, again in the company of [T.D.], he stole vehicle with the keys in the ignition and then picked up three other boys. No damage was done to the vehicle. However, an oxygen tank valued at $220 was stolen and had to be immediately replaced at the owner's expense. That same date, J.M., again with [T.D.], stole another vehicle by breaking window and then the steering column and "cheating" the ignition. Deliberate damage was also done to this vehicle. The auto offences then followed in continuous succession causing various degrees of damage and loss of articles from the interior: (a) two offences on May 1; (b) one attempt on May 14, 1994; (c) another attempt on May 15; (d) another attempt on May 18 (on the same vehicle as on May 14); (e) three vehicles stolen on May 20; and (f) four vehicles stolen on May 21. The total amount of damage to all these vehicles was $21,062.71. The total value of all items stolen was $6,055. Some time during the evening of May 21 while J.M. was engaged in this last series of offences, J.M.'s father received information that led him to believe his son was stealing cars. After searching most of the night for his son, he found him and took him to the police station where J.M. provided lengthy statement admitting his involvement in all the previous offences. On May 24, 1994, J.M. again went to the police station and gave another lengthy statement. At the same time, he went through police files and helped the police solve other car thefts. He also accompanied the police on driving tour locating stolen and damaged vehicles. On May 25, 1994, J.M. gave third statement to the police. As result of these statements, the police were able to pursue number of individuals and solve number of other crimes. After assisting the police with their inquiries in this manner, J.M. was released to appear in court on June 22, 1994. Then during the evening of June 21, he and second youth stole 1993 vehicle. The police received report vehicle had been stolen, found it being driven by J.M. and pursued it. J.M. tried to get away and drove through three stop signs, two within city limits and one on busy highway, speeding all the while. It ended with J.M. crashing the car into power pole, causing $10,000 worth of damage to vehicle which had been valued at $20,000. No one was injured. As result of all this, J.M. was charged with theft over $1000, possession of property over $1000, dangerous driving and breaching condition of his undertaking. Once arrested on this second occasion, J.M. was not permitted bail. Thirteen days later, the Youth Court judge allowed an application pursuant to s. 7.1 of the Young Offenders Act and ordered J.M. placed in the care of his parents where he remained under their strict control until September 7, 1994 when he received the above disposition. J.M. was born September 11, 1979. He had no criminal record prior to these offences. His parents have two other children aged 12 and 10. The parents state, prior to these matters, they had encountered no behaviourial problems with their son, but school officials described him as being disruptive and that he possessed poor attitude toward teachers and classmates. The group of youths with whom J.M. had involved himself in these matters was, accordingto his parents, totally different peer group. J.M. was at the time registered in Grade 9. It does not appear that alcohol or drugs played any role in these offences. In his reasons for disposition, the learned Youth Court judge said that he considered as aggravating features: (i) the police chase; (ii) the deliberate damage done to number of vehicles; and (iii) the large number of charges before him. To be weighed against this, he considered J.M.\'s age, that he had no criminal record and that he had co-operated extensively with the police. He also took into account "the very responsible approach that his father has taken throughout this whole event". He saidthe father had acted as "a very strict jailer for couple of months.... while he has been held in remand". The father had informed the Court he had seen J.M. make great change during this period. The Youth Court judge then said this: want it clearly understood that there might not have been or there certainly wouldn't have been as much further custody and there might not have been any further custody other than what you've served on remand over the last three months or so had you not involved yourself in the police chase. By putting yourself in situation where you through the operation of motor vehicle endangered the lives of the public, you convince me and other judges that the public has to be protected firstly by making it clear to you that that won't be tolerated, but by also making it clear to others that where police chases are involved there will be very firm reaction. Accordingly, on the three offences which occurred after you had already been charged with the first large group of offences, that is the 21st of June theft, dangerous driving, and breach of your terms of release I'm sentencing you in addition to the time you've already served and want the time shown as part of his record as secure custody there'll be further six months of open custody. The Youth Court judge explained the secure custody covered the periods from June 21 to July 4, when J.M. was in the Paul Dojack centre, and from July to September 7, 1994, when J.M. was with his father. The Youth Court judge was correct when he considered that separate penalty was required for the dangerous driving offence. It must be clearly understood that if you steal motor vehicle and stop when apprehended, you will receive the penalty appropriate for stealing, which may, for first offender, be lenient one; but, if you try to escape, the law will deal with you severely. J.M. and the people of Regina were fortunate no one was hurt. The possibility of maiming or killing was great. Whether someone was hurt, and regardless of J.M.'s youth and his status as young offender, custodial offence was in order for the dangerous driving (see: R. v. C.(J.M.) (1994), 1994 CanLII 16621 (MB CA), 90 C.C.C. 385 (Man. C.A.). have also considered the fact this offence was committed while he was awaiting disposition resulting in an offence in and of itself and that the vehicle was yet again stolen. Accordingly, the disposition of six months' open custody imposed on J.M. for the offences committed on the night of June 21, 1994 was fit. That leaves for consideration the question of the fitness of the dispositions for the 15 auto theft and attempted auto theft offences that J.M. committed prior to June 21, 1994. recognize, as did the Youth Court judge, that J.M.'s father began to play significant role in his son's life and virtually imprisoned him for the months of July and August, but being controlled by one's parents without the intervention of an outside agent cannot be considered the same curtailment of one's liberty as secure custody. It is not possible to equate the two. I have also had regard for the disposition imposed on [T.D.] Uniformity of sentencing is not a factor to be given great weight in comparing dispositions of young offenders. The consideration of needs, circumstances and how best to rehabilitate, by necessity, will result in disparity. An exception to this general principle must be made in the case of youths who form part of the same enterprise and who are of the same age and circumstances. To give probation to one and eight months open custody to the other cannot be reconciled. Probation does not sufficiently recognize the multiple nature of the offences and the malicious damage caused to some of the vehicles. But to impose the same disposition as [T.D.] would not be appropriate for several reasons. Firstly, great credit must be given for J.M.'s co-operation with the police. Secondly, weight must be given to the control which J.M.'s father is now exerting in his life. Since June 21, 1994, J.M. has made excellent progress in changing his ways. The Court was informed that J.M. was given the opportunity to participate in the escape described in relation to [T.D.], but made the conscious decision not to do so. Finally, the Court notes that it was [T.D.] who showed J.M. how to breach vehicle's ignition. Taking these matters into account and weighing what was said in R. v. B. (S.) et al., fit disposition for the offences prior to June 21, 1994 would be four months open custody. Accordingly, leave to appeal is granted and the appeal is allowed. The dispositions for the auto offences which had occurred prior to June 21, 1994 will be set aside and disposition of four months open custody and 18 months probation substituted. The two dispositions will run consecutively so that his custodial disposition, in total, will be ten months open custody. The terms of the probation order will be as previously provided. DATED at the City of Regina, in the Province of Saskatchewan, this 6th day of December A.D. 1994. JACKSON J.A. concur BAYDA C.J.S.
The accused, a young offender, pleaded guilty to 16 counts of auto theft. He was sentenced to 6 months open custody and 2 years probation. Prior to being sentenced, he spent 13 days on remand and 2 months under house arrest under s.7.1 of the Young Offenders Act. The Crown appealed the sentence. HELD: Appeal allowed. 1)The accused was 15 years of age and had no record. He assisted the police once apprehended. 2)Although another young offender involved in these offences had received a sentence of 9 months open custody, uniformity of sentence was not a factor to be given great weight in comparing dispositions of young offenders. 3)The sentence was increased to 10 months open custody.