Her Majesty the Queen v. D.S. Jr. (a "young person") [Indexed as: R. v. S. (D.)]

93 O.R. (3d) 211

Court of Appeal for Ontario,

Gillese, Blair and Watt JJ.A.

October 28, 2008

Criminal law -- Young offenders -- Sentencing -- Aggravated assault -- Aboriginal youth taking part in vicious and unprovoked group assault which left complainant seriously injured -- Youth having lengthy record and tragic background -- Judge making serious violent offender designation -- Twenty- four month custody and supervision order for aggravated assault and breach of probation being affirmed as appropriate sentence prior to consideration of credit for pre-trial custody -- Eighteen months' probation imposed at trial reduced to 12 months as total sentence exceeded maximum sentence permitted under YCJA.

Criminal law -- Young offenders -- Sentencing -- Pre-trial custody -- Trial judge erring in not including pre-trial custody in calculating whether combined duration of sentences imposed for different offences exceeded three years -- Trial judge also erring in failing to give youth credit for pre-trial custody on one-for-one basis -- Youth credited for seven months and one week of pre-trial custody rather than six-month credit given at trial -- Youth Criminal Justice Act, S.C. 2002, c. 1, s. 42(15).

D, age 16, and his 15-year-old co-accused L pleaded guilty to aggravated assault and breach of probation following a vicious, unprovoked group attack which left the complainant with a permanent brain injury. There was no evidence that D personally delivered any assaultive blows, but he stated that he wanted to kick the complainant and only refrained because the complainant was already unconscious. L admitted kicking the complainant three or four times. Both accused were Aboriginal youths with lengthy criminal records, and both suffered tragic childhoods. D had previously committed a serious violent offence and was on probation at the time of the offence. The sentencing judge found that, while D did not participate in the actual assault, he was so closely intertwined with the assault that it was appropriate that he receive the same sentence as L. D was sentenced to 24 months for aggravated assault, less six months' credit for seven months and one week spent in pre-trial custody, to be served as 12 months' secure custody and six months of community supervision, and 18 months' probation for breach of probation. D appealed.

Held, the appeal should be allowed.

The sentence exceeded the three-year maximum permissible under s. 42(15) of the Youth Criminal Justice Act where more than one youth sentence is imposed in respect of different offences. Credit for pre-trial custody must be taken into account in calculating the sentence "imposed" for the purposes of s. 42(15). As a result, the period of probation is decreased from 18 months to 12. The sentencing judge also erred in failing to give D credit for pre-trial custody on a one-for-one basis. There were no exceptional circumstances that warranted a departure from the usual practice of granting youths a one-for- one credit. However, the sentencing judge's discretionary decision not to grant enhanced credit was entitled to deference. The accused had a lengthy history of disciplinary offences while in detention, a facility similar to that in which the accused will serve the custodial portion of his sentence. The 24-month custody and supervision order should be varied by giving credit for seven months and one week rather than for six months. [page212]

The sentence was fit. The accused had a lengthy record, including for an offence designated as a serious violent offence, and was on probation at the time. The sentencing judge gave full consideration to D's Aboriginal status and tragic upbringing, and was justified in treating the two accused as morally equal participants such that no distinction should be drawn based on their degree of participation in the assault.

APPEAL from the sentence of Keast J. of the Ontario Court of Justice imposed on September 14, 2007 for aggravated assault and breach of probation.

Cases referred to R. v. B. (T.) (2006), 2006 4487 (ON CA), 78 O.R. (3d) 721, [2006] O.J. No. 584, 207 O.A.C. 255, 206 C.C.C. (3d) 405, 68 W.C.B. (2d) 489 (C.A.), apld Other cases referred to R. v. L. (E.), 2006 12290 (ON CA), [2006] O.J. No. 1517, 210 O.A.C. 124, 69 W.C.B. (2d) 600 (C.A.) Statutes referred to Youth Criminal Justice Act, S.C. 2002, c. 1, ss. 38(3)

Michael Lacy, for appellant. Brad Greenshields, for respondent.

The judgment of the court was delivered by

GILLESE J.A.:--

[1] This appeal requires the court to consider again the sentencing provisions of the Youth Criminal Justice Act, S.C. 2002, c. 1 (the "YCJA"). Facts

[2] The following facts are taken largely from the agreed statement of fact that was read into the record in the court proceedings below.

[3] On January 18, 2007, at approximately 10:45 p.m., D.S., L.T. and a group of their friends were in front of the City Centre on Elm Street in downtown Sudbury, waiting for a cab to take them to a party. They had consumed alcohol and marijuana, and possibly some crack cocaine. They were all intoxicated by alcohol and drugs.

[4] D.S. was age 16 and L.T. was 15.

[5] The complainant, B.M., who was 18 years of age, was walking along Elm Street with his girlfriend. B.M. was known to the group as a person who sold narcotics in that area of town. B.M. and L.T. had had some type of dispute in the past and there were bad feelings between them. The group chased B.M. on foot. When they caught him, they pushed him to the ground. One member of the group had a knife which he held to B.M.'s throat. The group kicked and punched the complainant. [page213]

[6] The beating came to an end when a civilian walked out onto the street and observed the beating. B.M. was unconscious and having seizures when police arrived on the scene.

[7] B.M. sustained serious injuries to his facial area, including a broken nose, bruises and a swollen lip. He also sustained permanent brain injury. He was in the hospital for 21 days following the assault and was still in the hospital at the time of sentencing. Based on the Glasgow Coma Scale, the complainant came as close to dying from the assault as is possible without actually dying.

[8] All accused persons involved gave inculpatory statements to the police. D.S. said that he was present during the assault but was not the main perpetrator. He did not deliver any of the assaultive blows. He saw the group running and followed suit. He was not sure why he was running until he met up with the group where they had the complainant on the ground. He said he wanted to kick B.M. in the head, and pushed others out of the way to do so, but B.M. was already unconscious. A pair of boots worn by the appellant on the day of the incident was analyzed. Blood and hair were collected from the shoes; no forensic results were available at the time of sentencing.

[9] L.T. first said he did not participate in the assault but later admitted to kicking B.M. three or four times in the stomach.

[10] Both D.S. and L.T. were bound by probation orders at the time of the incident, which required them to keep the peace and be of good behaviour. L.T. was also bound by an unrelated second probation order.

[11] D.S. and his co-accused, L.T., pleaded guilty to aggravated assault and breach of probation. L.T. also pleaded guilty to the unrelated charge of breach of probation, as part of a global resolution of the charges against him.

[12] D.S. spent seven months and one week in pre-sentence custody. L.T. spent almost seven months in pre-sentence custody.

[13] Both accused were Aboriginal youths with lengthy youth records. The pre-sentence reports revealed that both have suffered tragic childhoods.

[14] The youth court judge (the "sentencing judge") made a serious violent offender designation. [See Note 1 below] Although D.S. did not participate in the actual assault, the sentencing judge found that he was so "closely intertwined" with the assault on the [page214] complainant that he imposed the same sentence on D.S. as he had on L.T.: [See Note 2 below] -- the maximum sentence of 24 months for aggravated assault, less six months' credit for the time spent in pre-sentence custody, to be served as 12 months' secure custody and six months of community supervision; and -- 18 months of probation for breach of probation.

[15] D.S. appeals from sentence. He argues that the sentencing judge erred by: (1) imposing a sentence that exceeded the maximum sentence permitted by the YCJA; (2) failing to give appropriate credit for the time spent in pre-sentence custody; and (3) imposing a sentence that was harsh, excessive and not fit in all the circumstances.

[16] The Crown acknowledges that the first two errors were made. However, counsel do not agree on how those errors should be remedied. Is the Sentence Illegal?

[17] Section 42(15) of the YCJA reads as follows:

42(15) Subject to subsection (16), if more than one youth sentence is imposed under this section in respect of a young person with respect to different offences, the continuous combined duration of those youth sentences shall not exceed three years, except if one of the offences is first degree murder or second degree murder within the meaning of section 231 of the Criminal Code, in which case the continuous combined duration of those youth sentences shall not exceed ten years in the case of first degree murder, or seven years in the case of second degree murder. (Emphasis added)

[18] On a plain reading of s. 42(15) of the Act, subject to exceptions for murder, where more than one youth sentence is imposed in respect of different offences, the continuous combined duration of the sentences shall not exceed three years.

[19] D.S. was sentenced to a total of 42 months: 24 months' custody and supervision, and 18 months of probation. More than one sentence was imposed under s. 42 in respect of different offences; [page215] therefore, the three-year maximum duration of the sentences imposed by s. 42(15) applies. As 42 months is greater than three years, the sentence that was imposed is illegal. It must be reduced so that the maximum sentence imposed is no greater than 36 months.

[20] It appears that the sentencing judge considered whether the sentence exceeded the three-year maximum permissible under s. 42(15) without taking into account the credit that he intended to give the appellant for his pre-sentence custody. In R. v. B. (T.) (2006), 2006 4487 (ON CA), 78 O.R. (3d) 721, [2006] O.J. No. 584 (C.A.), this court established that to do so is an error.

[21] In paras. 28 through 32 of B. (T.), Lang J.A., writing for the court, explained that the credit to be given a young person for his or her pre-sentence custody must be deducted from the maximum sentence imposed under s. 42(15):

The Crown argues, however, that the sentence "imposed" on the appellant was only 33 months and that pre-sentence custody cannot be included as part of the sentence "imposed". I do not agree.

Since a sentence includes the punishment served both before and after sentencing, time served is a component of the offender's overall custodial sentence. This is consistent with Fice, supra, which said at para. 21:

Treating pre-sentence custody as part of the total punishment imposed also accords with the fact that, for purposes of precedent, the respondent's "sentence" for the offence she committed will generally be understood to be the global sum of 50 months, rather than the 14 months actually imposed by the trial judge.

Similarly, in considering young offender sentences, the Manitoba Court of Appeal looked at sentences for adult offenders, noting "an adult will not, barring unusual circumstances, receive the maximum penalty set out in the Criminal Code if he or she has spent a substantial time in pretrial custody": R. v. K. (C.J.), 1994 16783 (MB CA), [1994] M.J. No. 512, 97 Man. R. (2d) 31 (C.A.), at para. 11.

Accordingly, I cannot accept the argument that time served must be taken into account in determining an appropriate sentence, but must not be taken into account in determining a maximum sentence. To hold otherwise would create an illogical anomaly in the interpretation of the two provisions. Any ambiguity in the meaning of s. 42(15) is resolved by considering it in the context of s. 38(3)(d). This section clearly requires that pre-sentence custody be taken into account.

Pre-sentence custody must be deducted from a maximum sentence under s. 42(15).

[22] As I explain below, apart from the two errors that the Crown concedes the sentencing judge made, the sentence was otherwise fit. The sentencing judge intended to impose the maximum two-year custody and supervision order. To give effect to that intention, I would remedy the first error by reducing the 18-month period of probation to 12 months. [page216] Was Appropriate Credit Given for Pre-Sentence Custody?

[23] The appellant spent seven months and one week in pre- sentence custody for which he was given six months' credit. The appellant argues that the sentencing judge erred in failing to give him at least one-for-one credit for the time spent in pre-sentence custody.

[24] Section 38(3)(d) of the YCJA requires the youth justice court to take into account "the time spent in detention by the young person as a result of the offence". [See Note 3 below] The question of how pre-sentence custody should be credited, pursuant to s. 38(3) (d), was considered in B. (T.). Justice Lang, on behalf of this court, answered that question by considering first the two reasons why adult offenders are often credited with more than one day for each day of pre-sentence custody. First, adult detention centres lack the resources of correctional facilities and their conditions are generally more onerous than those in correctional facilities. Second, adult offenders are eligible for statutory release and parole but, in determining eligibility, pre-sentence custody is not taken into account.

[25] She went on to note that young offenders have historically been given credit only for time served in pre- sentence custody (i.e., a one-for-one basis) because they were not entitled to statutory remission and because they did not experience the harsh conditions suffered by adults in detention centres. At para. 40 of B. (T.), Lang J.A. explains that the situation of young offenders has been changed by the YCJA: [page217]

However, under the YCJA, youth sentences are now comprised of two-thirds custody and one-third community supervision. Thus, young persons are now in a similar position to adult offenders in that time in pre-sentence custody delays their eligibility for community supervision. For example, a youth sentenced to nine months would serve six of those months in [secure] custody, the same amount of time served by T.B. in this case. It is for this reason that, under the YCJA, trial judges have credited a youth with 1.5 days for every day spent in pre-sentence custody. On a 1.5-for-one basis, the appellant would receive credit for nine months of pre- sentence custody.

[26] However, the credit to be given for pre-sentence custody is a discretionary matter; it is not a mechanical calculation. There are a number of ways in which pre-sentence detention can be "taken into account", including in the decision to reduce the type or severity of the sentence. As Lang J.A. explains, in paras. 41-42 of B. (T.):

Whether such a credit will be given in a particular case will depend on more than the application of an arithmetical formula. Section 38(3) lists a number of factors to be taken into account in determining the appropriate sentence, only one of which is pre-sentence custody. The s. 38(3) factors do not attract a determination on a formulaic basis.

Thus, while a 1.5 credit may be the starting point for crediting pre-sentence custody, other considerations may affect the appropriate credit. Such factors may include the conditions of the youth's pre-sentence custody, the reasons for that detention, the length of the detention, the reasons for any delay in reaching trial or sentencing, and the youth's need for further custody or community service to meet the purposes of the YCJA. (Footnotes omitted)

[27] So, for example, in R. v. L. (E.), 2006 12290 (ON CA), [2006] O.J. No. 1517, 210 O.A.C. 124 (C.A.), this court confirmed a youth sentence in which significantly less than one-for-one credit was given for pre-sentence custody. However, the court affirmed the reasoning in B. (T.), noting that only in exceptional cases should the youth justice court exercise its discretion to reduce the credit given below one-for-one.

[28] In the present case, the sentencing judge appears to have approached the matter on the basis that credit would be given on a one-for-one basis. At the same time, his intention was to impose the same sentence on the appellant and his co- accused, L.T. Rather than ensuring parity, however, by failing to give the appellant one-for-one credit for his pre- sentence custody, the appellant ended up serving a longer effective sentence than his co-accused.

[29] The Crown concedes that there were no exceptional circumstances that warranted a departure from crediting the appellant on a one-for-one basis. Indeed, the Crown at the sentencing hearing had indicated that while it sought the same sentence for both accused, the appellant had a further one month of pre-sentence custody for which he should be credited. [page218]

[30] Before us, the Crown argues that the sentencing judge was justified in refusing to give enhanced credit, however. I agree.

[31] The primary argument advanced below for giving enhanced credit was the premise that the appellant had used his time in pre-sentence custody to rehabilitate while his co-accused had not. The appellant did make progress while in custody, as the sentencing judge recognized. However, that progress appears to have come only in the final month of pre-sentence custody, following his plea of guilt. In declining to give enhanced credit, the sentencing judge took into account evidence of the appellant's long history of disciplinary problems during detention. He also observed that the detention facility was similar to the facility in which the appellant would serve the secure custody part of his sentence. The sentencing judge properly considered whether to give the appellant enhanced credit and he gave reasons for the exercise of discretion in refusing to give such credit. The exercise of discretion is entitled to deference and I would not interfere with it.

[32] Accordingly, I would vary the 24-month custody and supervision order by giving credit for seven months and one week, rather than for six months. Is the Sentence otherwise Fit?

[33] The appellant submits that the sentencing judge failed to give adequate consideration to youth sentencing principles and the particular circumstance of the appellant's involvement in the offence. He emphasizes that the appellant's role was "markedly different" from that of the co-accused in that he did not deliver any of the blows to the complainant and was not a principal actor. He points to s. 38(3)(a) of the YCJA which requires the youth justice court to take into account the "degree of participation by the young person in the commission of the offence". He contends that the sentencing judge erred in failing to properly take into account the nature and degree of the appellant's participation and in failing to draw a distinction between the appellant's participation and that of his co-accused, L.T.

[34] In addition, the appellant submits that the sentencing judge failed to fully consider the appellant's personal circumstances. The appellant was an Aboriginal person who came from a very dysfunctional family. He had been made a Crown ward at the age of seven as his parents were both crack cocaine addicts who spent most of their lives in and out of jails. However, the appellant was not without prospects for rehabilitation. Unlike his co-accused, as has already been noted, the appellant [page219] used at least some of his time in pre-sentence custody to work towards rehabilitation. In the later part of that detention, he actively and genuinely participated in programs that were available to him and also came under the care of a psychiatrist who had prescribed medication to him to assist him with his personal issues.

[35] The sentencing judge was fully alive to both of these considerations. In respect of the appellant's involvement, while he acknowledged that the appellant did not deliver any blows to the complainant, he found that the appellant's participation was an integral part of the vicious, unprovoked attack on the complainant. He described the appellant's conduct as "closely intertwined" with what happened to the victim. He noted that the appellant wanted to kick the complainant and took steps to do so, however, he "didn't or couldn't". He noted also the evidence, including the blood on the appellant's boot, which showed that he was in close physical proximity to the victim. He found that the appellant's "presence and his determination to get at the victim fuelled the other offenders".

[36] The sentencing judge considered the two accused as morally equal participants such that no distinction should be drawn based on their degree of participation in the assault. On the record, he was justified in reaching this conclusion. The appellant intended to kick the victim in the head and attempted to participate in the assault as a principal actor. His presence fuelled the assaultive parties. He acted in concert with the group to violently assault a single person.

[37] The sentencing judge gave full consideration to the appellant's Aboriginal status and tragic upbringing. I see nothing in the argument that he failed to consider the appellant's personal circumstances. Disposition

[38] Accordingly, I would allow the appeal and vary the sentence as follows: (1) 24 months for the aggravated assault, less credit of seven months and one week of pre-sentence custody, which leaves a sentence of 16 months and three weeks (67 weeks). The 67- week period is to be comprised of 45 weeks of closed custody followed by 22 weeks of community supervision; and (2) 12 months' probation for the breach of probation. [page220]

[39] The appellant has served seven additional weeks of custody. That time is to be credited against the 22 weeks of community supervision, leaving 15 weeks of community supervision to be followed by 12 months of probation.

Appeal allowed in part.

Notes

Note 1: L.T. already had a previous conviction designated as a serious violent offence.

Note 2: L.T. received an additional 30-day sentence for the unrelated failure to comply charge that was to be served concurrently with the aggravated assault sentence.

Note 3: The full text of s. 38(3) of the YCJA reads as follows:

38(3) In determining a youth sentence, the youth justice court shall take into account

(a) the degree of participation by the young person in the commission of the offence;

(b) the harm done to victims and whether it was intentional or reasonably foreseeable;

(c) any reparation made by the young person to the victim or the community;

(d) the time spent in detention by the young person as a result of the offence;

(e) the previous findings of guilt of the young person; and

(f) any other aggravating and mitigating circumstances related to the young person or the offence that are relevant to the purpose and principles set out in this section.