THE COURT OF APPEAL FOR SASKATCHEWAN Citation: 2006 SKCA 114 Date: 20061012 Between: Docket: 1242 Her Majesty the Queen Respondent An order has been made in this case prohibiting publication of any information that could disclose the identity of the young person pursuant to s. 75(3) of the Youth Criminal Justice Act Coram: Cameron, Gerwing and Smith JJ.A. Counsel: Lane W. Wiegers for the Crown [M.A.H.] in person Appeal: From: Provincial Court Heard: October 12, 2006 Disposition: Appeal allowed (orally) Written Reasons: October 17, 2006 By: The Honourable Madam Justice Smith In Concurrence: The Honourable Mr. Justice Cameron The Honourable Madam Justice Gerwing Smith J.A. 1] This is an application for leave to appeal and, leave being granted, an appeal by the Crown from a sentence imposed against a young offender pursuant to the Youth Criminal Justice Act, S.C. 2002, c. 1. The respondent M.A.H. had pled guilty to a charge of robbery, an offence contrary to s. 344(b) of the Criminal Code. The respondent was sentenced to 90 days secure custody, 45 days community supervision, one year probation and a 10 year firearms prohibition. M.A.H. had already served 45 days in custody on remand. The Court dealt with the matter orally, after hearing argument, granting the Crown’s application for leave to appeal, and allowing the appeal. The sentence was set aside and a sentence of 12 months closed custody, six months community supervision, one year probation and a 10 year firearms prohibition was imposed in addition to the 90 days closed custody already served at the time of the appeal. [2] It is the view of this Court that the sentence imposed by the sentencing judge was demonstrably unfit, failing to taking into account the seriousness of the offence, the culpability of the respondent, the criminal history and other circumstances of the respondent, and the principles of sentencing set out in the Youth Criminal Justice Act. It appears from the transcript of the sentencing hearing that the learned trial judge was of the view that the recent decision of the Supreme Court of Canada in R. v. B.W.P; R. v. B.V.N., 2006 SCC 27 (CanLII); (2006), 267 D.L.R. (4th) 385, had “fundamentally changed the sentencing rules” (sentencing transcript, at p. 30) in cases governed by the Youth Criminal Justice Act. [3] The circumstances of the offence are set out in the sentencing judgment as follows: [3] The circumstances of the offence are as follows: H., whose date of birth is November 21, 1988, along with two adults, agreed to commit robbery. H. then called Pizza Hut and requested that pizza and Coke be delivered to false address. H. requested that the delivery person bring change for $100.00 bill. The three individuals then hid in an alley adjacent to the false address. H. was the only one of the three not to have his face masked. When the deliveryman, Peers, arrived, H. called out to him. H. and one of the adults approached Peers, and the adult pointed .45 calibre semi-automatic handgun at Peers' chest, while the other adult stood watch some feet away. The gun had been stolen in an earlier breaking and entering committed by one of the adults, and could not be fired. The deliveryman was not very intimidated by the gun, thinking that it was pellet gun. He gave the pizza and Coke to the two accuseds, but refused to give them the money. All three of the accuseds fled. [2006 SKPC 78] [4] Although he did not actually hold the gun, the respondent was clearly principal player in this offence. Although the co-offenders were adults, they were not significantly older than the respondent, who was almost 18. The respondent has an extensive young offender record of over 44 offences in approximately 46 months, including three break and enters, 10 other property related offences, one escape from lawful custody and one assault on police officer. He has also been convicted of 26 breaches of condition of sentence or probation. The pre-sentence report which was ordered also mentions large number of custodial incident reports during periods when the respondent has been in custody. The offence in question occurred only 10 days after the conclusion of the open custody portion of previous sentence, while the respondent was still subject to community supervision. [5] The pre-sentence report is very negative, evaluating the respondent as high risk to re-offend, noting that he has been consistently non-compliant with court orders or authorities in every setting he encounters. He has rarely attended school since 2003, and associates only with persons involved in criminal activity. He has severe alcohol problem, and in January 2004 was hospitalized with blood alcohol reading of .52. He has referred himself three times to detoxification centre, but has been unable to follow through. He is also high consumer of marihuana. The pre-sentence report flatly remarks that the risk assessment test failed to identify any strength areas. The writer recommended psychological or psychiatric testing for the respondent and concluded by recommending custody and supervision order with secure custody. [6] This young person had previously been sentenced seven times to the following sentences: community work service; probation; deferred custody; probation; open custody and supervision; open custody and supervision; open custody and supervision. During this time he had repeatedly violated conditions of his sentences and continued to offend. The offence in this case is the second violent offence of this accused. The inescapable conclusion is that at present this young person cannot be controlled and cannot receive the treatment programs he clearly needs in non-custodial setting. While in custody, although his conduct has resulted in numerous incident reports reflecting constantly disruptive pattern of behaviour, he has been able to complete number of academic credits. [7] As have indicated, the learned sentencing judge in his judgment focused considerable attention on the decision of the Supreme Court of Canada in B.W.P., which he took to indicate that sentence of closed custody must be employed only rarely and in unusual circumstances. substantial portion of the judgment was then addressed to the reasons why, even so, custodial sentence was warranted in this case. He commented on the seriousness of the offence in question and the necessity to bring home to the respondent the enormity of his misconduct. He noted the escalating pattern of criminal behaviour, and the evidence that previous sentences had apparently had little effect, failing to reinforce respect for societal values in the respondent's mind. He was mindful of the extremely negative pre-sentence report and the identified needs for programming and education. All these factors led him to conclude that custodial sentence was in this case justified. [8] However, no reasons at all were offered for the short length of the sentence imposed, or how this related to the principles of sentencing set out in the Act. It was clear that the primary concern of the sentencing judge was that, in the wake of the Supreme Court decision in B.W.P., custodial sentence might not, in these circumstances, be open to him at all. He concluded his judgment with this comment: [23] It may be of note that, given the fact that H. was not represented, and given the uncertainty of the law just now in the wake of these Supreme Court decisions, not only inform him of his right to appeal this sentence; encourage him to do so, to ensure that he has been given just treatment. [9] It is our respectful view that the learned sentencing judge’s conclusion that the decision in B.W.P. virtually ruled out custodial sentences for young persons under the Youth Criminal Justice Act was unwarranted. The gist of that decision is that under the Act, the principle of general deterrence is not a factor to be taken into account and cannot be used to justify a sentence harsher than the circumstances of the offender and the offence would warrant. Nor is specific deterrence to be considered as a separate factor. B.W.P., for example, involved young person who killed man during fight and pled guilty to manslaughter. He was sentenced to 15-month custody and supervision order, one day to be served in open custody and the balance under community supervision. [10] In upholding the propriety of that sentence, the Court noted that the primary sentencing objectives under the Act were to promote the protection of the public by addressing the circumstances underlying the offending behaviour, by rehabilitating and reintegrating young persons into society and by holding young persons accountable through the imposition of meaningful sanctions related to the harm done. In the case of B.W.P., the Court noted the offender’s supportive and stable family, aboriginal identity, minimal legal record, positive school attendance and performance, pro-social extra- curricular activities and positive comments from family members, school officials and hockey coaches. He had been assessed as low risk to re-offend. The sentencing judge had been of the view that since the offence the young person had made positive progress in his rehabilitation and reintegration into society, concluding: [23] Separating BWP from society as urged by the Crown will in my opinion not address the long-term protection of the public as envisioned by the Youth Criminal Justice Act. However, allowing him to build on the progress he has made since his release from custody would meet that goal. [11] While the learned trial judge in the instant case was correct in concluding that the focus of sentencing under the Act is on the reinforcement of societal values by imposing meaningful consequences, with view to rehabilitation and reintegration, it is our respectful view that in attempting to apply these principles he was distracted by the perceived limitations arising from the decision in B.W.P., and failed to consider what length of sentence would in this case respect those principles and accomplish the goals in question. It is our view that these principles dictated a long term custodial sentence in this case, to accomplish the task of bringing the seriousness of the offence to the respondent’s attention, and provide meaningful consequences to reinforce societal values without negatively affecting the respondent’s likelihood of rehabilitation. In the last regard, it is apparent that meaningful progress in counseling and education can only be achieved for this young person in custodial setting. [12] There can be no doubt of the seriousness of the offence in the instant case, particularly in the context of the on-going conduct of the respondent. This was case of armed robbery, with the use of gun, committed against vulnerable member of society. The respondent was principal offender. It represents an alarming escalation in the unlawful conduct of the respondent despite repeated attempts to achieve his rehabilitation and reintegration in the community. It occurred only 10 days after the conclusion of his last imposed period of open custody and while he was still subject to the community supervision portion of his previous sentence. [13] In addition, the contrast of the personal circumstances of this offender and those of B.W.P. could not be sharper. [14] It is evident from the sentencing transcript that the sentencing judge concluded that, following the decision in B.W.P., it was not possible to apply the principle of parity of sentencing mandated by s. 38(2)(b) of the Act, for, in his view, previous sentences imposed in the region would have reflected an impermissible application of the principle of deterrence. This conclusion, in our view, does not follow. While some precedents might well have to be discarded on that basis, it is necessary to examine previous decisions of the courts to determine the degree to which, if any, deterrence was factor taken into account to increase sentence. [15] recent decision of this Court that must be taken into account is R. v. R.J.E. (2004), 2004 SKCA 111 (CanLII), 254 Sask. R. 218, where the Court considered the fitness of six month deferred custody sentence with nine months probation to follow for an offender who committed nine offences over period of about 12 months, including an armed robbery in which he held knife to the throat of gas station attendant and mischief in which he caused about $20,000 damage to his mother’s home. He was 16 years old and had no prior criminal record. The evidence supported the view that he could not be controlled in non-custodial setting. The Crown’s sentence appeal was allowed and, after granting four months credit for his time in pre-sentence custody, this Court imposed sentence of 14 months closed custody to be followed by seven months community supervision. There is no suggestion in the decision that deterrence was factor taken into account. [16] It is our conclusion that the sentence imposed in this case was demonstrably unfit, taking into account the seriousness of the offence and the need to bring this home to the respondent, his lengthy record of previous offences and his assessment as high risk to re-offend, his inability to be controlled in non-custodial setting, and his need for psychological and substance abuse counseling and further education. [17] The Crown’s application for leave to appeal the sentence imposed on the respondent is granted and the appeal is allowed. [18] The respondent has already served the 90 day closed custody portion of the sentence originally imposed. That sentence is to be set aside. In addition to the time already served, the respondent is to serve 12 months in closed custody to be followed by a period of community supervision of six months and a period of probation of one year. He will also be subject to a 10 year firearms prohibition as in the original sentence.
This is an application for leave to appeal, and leave being granted, an appeal by the Crown from a sentence imposed against a young offender pursuant to the Youth Criminal Justice Act. The respondent pled guilty to a charge of robbery, an offence contrary to s. 344(b) of the Criminal Code. The respondent was sentenced to 90 days secure custody, 45 days community supervision, 1 year probation and a 10 year firearms prohibition. HELD: Appeal allowed orally. The sentence is set aside and a sentence of 12 months closed custody, 6 months community supervision, 1 year probation and a 10 year firearms prohibition was imposed in addition to the 90 days closed custody already served at the time of the appeal.  1) It was clear that the primary concern of the sentencing judge was that, in the wake of the Supreme Court of Canada decision in R. v. B.W.P.; R. v. B.V.N. 2006 SCC 27, a custodial sentence might not be open to him at all. It is the Court's view that the sentencing judge's conclusion that the decision in B.W.P. virtually ruled out custodial sentences for young persons under the Youth Criminal Justice Act was unwarranted. The gist of that decision is that under the Act the principle of general deterrence is not a factor to be taken into account and cannot be used to justify a sentence harsher than the circumstances of the offender and the offence would warrant. Nor is specific deterrence to be considered as a separate factor. 2) It is the Court's view that a long custodial sentence is necessary to accomplish the task of bringing the seriousness of the offence to the respondent's attention, and provide meaningful consequences to reinforce societal values without negatively affecting the respondent's likelihood of rehabilitation.