R. v. Moonias, 2013 ONCJ 126

Court File and Parties

Court File No.: 105686 Date: 2013-03-14 Ontario Court of Justice

Between: Her Majesty the Queen — and — Steve Trevor Moonias

Before: Justice D. DiGiuseppe

Heard on: December 8, 2012 and January 25, 2013

Ruling on Dangerous Offender Application released on: March 14, 2013

Counsel:

• Robert Kozak, for the Crown
• S. George Joseph, for the accused Steve Trevor Moonias

Ruling on Dangerous Offender Application

DIGIUSEPPE J.:

A. Introduction

1On October 20, 2011, Steve Moonias plead guilty to two counts of aggravated assault and a charge of breach of probation arising from an altercation on December 16, 2010. A series of judicial pretrials from May 19, 2011 to September 6, 2011 resulted in a joint sentencing recommendation of a global sentence of 5 years imprisonment less presentence custody credit on a one for one basis.

2During the course of the judicial pretrials, Crown counsel indicated he would be seeking a psychiatric assessment to determine whether or not to bring an application for an order declaring Mr. Moonias as a Dangerous Offender or a Long-Term Offender pursuant to the provisions of the Criminal Code of Canada.

3On November 23, 2011 an Assessment Order was made pursuant to section 752.1 of the Criminal Code directing that Mr. Moonias be assessed to assist the court in determining whether he ought to be declared a Dangerous Offender or a Long-Term Offender. Mr. Moonias was assessed by Dr. Mark Pearce, a general and forensic psychiatrist, whose report dated April 24, 2012 was filed with the court. Subsequent to the preparation and filing of Dr. Pearce's report, the Crown confirmed its intention to seek Dangerous Offender status for Mr. Moonias and filed the Consent of the Attorney General, dated June 25, 2012.

4The Dangerous Offender Application was heard on December 18, 2012 and January 25, 2013. The matter was adjourned to March 14, 2013 for my ruling.

B. The Charges of Aggravated Assault

5On December 16, 2010, Neil Edward Moon and Alexa Kuchiak were in their residence watching a movie. At approximately 11 p.m. Mr. Moonias, who was known to both Mr. Moon and Ms. Kuchiak, arrived at their residence. Mr. Moonias was intoxicated and upset. He argued with Mr. Moon and suddenly, with no apparent provocation, stabbed him in the head. Mr. Moon tried to flee and was stabbed in the back. Mr. Moonias also engaged Ms. Kuchiak and stabbed her in the head, the back of the neck and the back of her arms. She and Mr. Moon managed to flee and call 9-1-1. Police arrived a short time later and found Mr. Moonias in the residence passed out on the floor. He was intoxicated. He was arrested and has been in custody since that date. At the time of this offence, Mr. Moonias was bound by the terms of a probation order dated November 13, 2009.

6Mr. Moon and Ms. Kuchiak were taken to hospital and treated for their injuries. Mr. Moon sustained one inch stab wounds to his scalp and shoulder. He also suffered a collapsed lung. The scalp laceration was superficial and the shoulder wound was sutured. A chest tube was inserted to treat his collapsed lung. Ms. Kuchiak sustained a laceration and scrape to her head, two small lacerations to her upper back and a two inch laceration to her arm. The wounds were cleaned and sutured. Both victims have recovered from their injuries.

7Alexa Kuchiak and her mother Shannon Kuchiak filed Victim Impact Statements. Although the victim has healed physically, she still bears the emotional scars from the attack. Her mother described the emotional trauma this way:

"Alexa was an emotional mess. She couldn't be left home alone, she couldn't sleep without the lights on, she couldn't sleep alone. My daughter slept in my bed with me for weeks after she was attacked and stabbed. Nightmares were violent and frequent, her moods were erratic and she was very jumpy and emotional."

C. Circumstances of the Offender

8Steve Moonias is a 32 year old Aboriginal man, born in Sioux Lookout, Ontario. His father Stanley Moonias and his mother Clara Quisses are from Neskantaga First Nation, a remote community in Northwestern Ontario. A Gladue Report, prepared by Darren Borg of the Indian Youth Friendship Society, was filed with the Court. That report sets out in considerable detail Mr. Moonias' personal history, including that of his family and his community. As is too often the case, the residential school experience within Aboriginal communities has had a significant impact on its members. In Mr. Moonias' case, this intergenerational impact created a toxic and abusive environment within which he was raised, an environment characterized by abuse, violence and neglect. It is little wonder that as Mr. Moonias grew into adulthood, the cycle of substance abuse and violence continued.

9Mr. Moonias' childhood in Neskantaga can be described as chaotic. He witnessed alcohol abuse and physical violence. His parents were physically abusive towards him. As a result, his relationship with them was distant. Mr. Moonias was sexually abused when he was nine years of age.

10As he grew older, Mr. Moonias began consuming alcohol and marijuana. This progressed to the point of addiction, contributing in large part to his criminal conduct, a connection readily acknowledged by Mr. Moonias.

11Mr. Moonias has a significant criminal record dating back to 2002.

1. On February 12, 2002 Mr. Moonias was convicted of uttering threats, two counts of mischief under $5,000.00, assault, failing to comply with a recognizance, and pointing a firearm. In addition to 30 days of presentence custody, he was sentenced to a term of imprisonment of 1 year and 240 days, and placed on probation for a period of 1 year.

According to Mr. Moonias, he was intoxicated at the time of the commission of these offences. The weapons charge involved pointing a hunting rifle at a police officer.

2. On March 14, 2006 Mr. Moonias was convicted of three counts of aggravated assault, fail to comply with a probation order, fail to comply with a recognizance and fail to attend court. In addition to two years of presentence custody, he was sentenced to a term of imprisonment of 5 years.

The first aggravated assault involved a wooden board with a nail protruding from it. Mr. Moonias was intoxicated. The subsequent two aggravated assaults were committed while Mr. Moonias was at large on the first charge. Again Mr. Moonias was intoxicated. He stabbed his brother and his former partner with a knife; his brother repeatedly and his former partner in the neck quite severely.

3. On April 3, 2006 Mr. Moonias was convicted of assaulting a peace officer and fail to comply with a recognizance. He was sentenced to a term of imprisonment of 90 days consecutive to the previous sentence of imprisonment. Mr. Moonias spat on a correctional officer while in custody because of a disagreement regarding sweetgrass he had in his cell.

4. On November 13, 2009, Mr. Moonias was convicted of assault, unlawfully in a dwelling house and failure to comply with a recognizance. In addition to 119 days of presentence custody, he was sentenced to a term of imprisonment of 90 days and placed on probation for two years. Mr. Moonias was intoxicated at the time of the offences and could not recall why he assaulted someone he described as a friend.

12Mr. Moonias has two children, Wilda and Redman, from a relationship with Rosalie Sakaney. He has one child Katrina from a relationship with Gloria McLeod. Wilda and Redman reside with Mr. Moonias' father in Neskantaga.

13Mr. Moonias continues to express a willingness to participate in treatment, in the institution he will ultimately be classified to and in the community. He expressed a desire to undertake psychiatric counselling, particularly to deal with his depression, and continued psychological counselling to address the trauma he experienced as a youth. His plan is to return to his home community, care for his children Wilda and Redman and seek employment in the mining industry.

14Mr. Moonias has been in continuous custody since his arrest on the charges before the court, totalling 2 years and 3 months. That presentence custody will be credited on a one for one basis to the 5 year jail sentence if a determinate sentence is imposed.

D. Position of the Crown and Defence

15The Crown seeks an order that Mr. Moonias be declared a Dangerous Offender and be detained in a penitentiary for an indeterminate period. In the alternative, the Crown seeks a determinate sentence of imprisonment and that Mr. Moonias be subject to a Long-Term Supervision Order for a period of 10 years.

16The defence opposes the Dangerous Offender Application but concedes that Mr. Moonias ought to be declared a Long-Term Offender and be subject to supervision for a period of between 5 and 7 years.

17The Crown and defence join in a submission that if a determinate sentence is imposed, Mr. Moonias be sentenced to a term of imprisonment of 5 years less presentence custody. The joint submission also includes a DNA order and a lifetime firearms prohibition pursuant to section 109 of the Criminal Code.

E. The Expert Evidence of Dr. Mark Pearce

18Dr. Pearce's assessment ordered in contemplation of this hearing was filed as an exhibit. Dr. Pearce is a forensic psychiatrist. He deals with risk assessments for violent and sexual offenders. He has conducted 25 assessments of this nature, both for the Crown and for the defence. He has testified as an expert in forensic psychiatry in the Ontario Court of Justice and the Superior Court of Justice on numerous occasions. Dr. Pearce was qualified as an expert in these proceedings.

19Dr. Pearce testified. In conducting his assessment and preparing his report, Dr. Pearce reviewed the following:

1. disclosure information pertaining to the index offences;
2. a copy of Mr. Moonias' criminal record;
3. details pertaining to prior criminal offences;
4. Mr. Moonias' correctional records;
5. a Gladue Report prepared by Darren Borg; and
6. Mr. Moonias' medical records.

In addition, Dr. Pearce met with Mr. Moonias on one occasion in the Thunder Bay District Jail. That interview lasted approximately four hours.

20Dr. Pearce concluded that Mr. Moonias did not suffer from a major mental illness. He diagnosed Mr. Moonias as suffering from:

1. dysthymic disorder, which is characterized by a chronically depressed mood that occurs for most of the day, for more days than not, for at least a two year period; and
2. polysubstance dependence, including cannabis, opioids, benzodiazepines, and primarily alcohol.

Although not diagnosed with a personality disorder, Dr. Pearce concluded that Mr. Moonias possessed certain antisocial and avoidant personality traits.

21Dr. Pearce conducted a risk assessment to predict Mr. Moonias' risk of committing a future violent offence. The methodology included an actuarial risk assessment, utilizing risk assessment tools, and a clinical risk assessment. Dr. Pearce scored Mr. Moonias on the Violence Risk Appraisal Guide (VRAG) and the Psychopathy Checklist-Revised (PCL-R). He also conducted a clinical risk assessment using the HCR-20, a tool that takes into account relevant past, present and future considerations particular to the offender.

22Mr. Moonias' score on the PCL-R was classified as moderate, falling short of a score required for a diagnosis of psychopathy. The absence of psychopathy is considered to be a positive prognostic factor. Mr. Moonias scored moderate to high on the VRAG and HCR-20. These scores suggest a moderate to high risk of future violent behaviour. Dr. Pearce also opined that given Mr. Moonias' history of substance abuse and impulsivity, and his history of committing severe violent offences, serious concerns remain that the reoffending could be imminent, frequent and severe.

23Dr. Pearce offered his opinion as to whether from a psychiatric perspective, Mr. Moonias met the test for a Dangerous Offender designation. At page 27 of his report:

"With respect to 'indifference to the reasonably foreseeable consequences of his/her behaviour', there is some support for this notion. That is, Mr. Moonias has previously received programming targeting relevant criminogenic variables. He has indicated a desire to, for example, avoid alcohol use in perpetuity, claiming he had 'learned his lesson'. Notwithstanding same, he has repeatedly returned to use of alcohol, with significant consequences.

As aforenoted, it is my opinion that Mr. Moonias represents a moderate to high risk of violent re-offense. It is likely that this translates into, as per the legislation as I understand it, a 'likelihood' of violent re-offense. Accordingly, and from a purely psychiatric perspective, it is my opinion that the statutory test for Dangerous Offender designation, as articulated in the Criminal Code, is met."

24Dr. Pearce also discussed issues related to a Long-Term Offender designation. At page 27 of his report:

"…it is my understanding that prior to declaring Mr. Moonias as a Dangerous Offender, we must address the issue of whether he presents with a 'reasonable possibility of eventual control of the risk in the community'. Although this phrase is not particularly well-defined from a psychiatric perspective, I tend to assume that 'reasonable possibility of eventual control of the risk in the community' does not suggest zero tolerance for any offending behaviour, but rather suggests harm reduction with respect to serious offending.

The above-noted risk assessment suggests that Mr. Moonias presents with a substantial risk of recidivism; he is, in my opinion, at moderate to high risk of violent re-offense. From a psychiatric perspective, whether he would meet criteria for Long-Term Offender status hinges on whether he can be considered treatable, and whether such treatment offers any hope that his risk could be managed within the community."

25Dr. Pearce described Mr. Moonias' substance abuse disorder as severe and treatment resistant, and the most problematic diagnosis. He noted that Mr. Moonias had undertaken substance abuse treatment in the past and vowed to avoid substances in the future. Mr. Moonias remains agreeable to ongoing treatment and abstention. However, notwithstanding these best intentions, Mr. Moonias has repeatedly returned to alcohol and/or drug use after completing treatment, and often with very serious consequences. Dr. Pearce was of the opinion that absent an anti-alcohol medication, there is a very significant likelihood of relapse should Mr. Moonias be returned to the community. Dr. Pearce went on to state that in his opinion, this anti-alcohol medication could be an effective deterrent, and essential should Mr. Moonias return to the community. Mr. Moonias, for his part, has expressed a willingness to take this medication. For this reason, some measure of optimism exists.

26Dr. Pearce also addressed the prognosis for Mr. Moonias' dysthymia. That condition, which manifests itself in general dissatisfaction and chronic low mood, likely contributes to his use of alcohol. Dr. Pearce recommended that Mr. Moonias continue to receive antidepressant medication and be monitored periodically by a psychiatrist. Some form of cognitive-behaviour therapy may also be of some benefit. Mr. Moonias has had some involvement with Dr. Neil Brockwell, a psychologist, who met with him from time to time while he was involved in the corrections system. This involvement should continue.

27Dr. Pearce noted that Mr. Moonias' response to supervision was poor. Notwithstanding his intention to abide by conditions, he has consistently breached conditions imposed upon him, particularly by returning to alcohol use. However, Mr. Moonias has historically participated fairly well in treatment and has been open to treatment options afforded to him, most recently the anti-alcohol medication. These factors, as well as Mr. Moonias PCL-R score, which is consistent with his acceptance of and participation in treatment, suggest a more optimistic prognosis.

28Dr. Pearce, at p. 30 of his report, gave a guarded prognosis should a Long Term Supervision Order (LTSO) be imposed:

"In summary, and considering the aforenoted factors, there is some reason for optimism that this gentleman will be manageable in the community upon the expiry of his LTSO, assuming that he is provided with further opportunities to participate in treatment, that he accepts anti-alcohol medication, that he is provided with vocational and other psychosocial rehabilitation, and that he is monitored closely with respect to his mood and for a return to substance abuse. That is, should Mr. Moonias participate in rehabilitative programs, should he successfully avoid alcohol and maintain his sobriety in the community (with the assistance of medication and external monitoring), and given the absence of psychopathy and the presence of psychosocial supports, it seems reasonable that Mr. Moonias, at the time of expiry of his LTSO, would have made gains in several areas to the point that he would develop an appreciation of a lifestyle without alcohol. It would likely become apparent to him that he can improve his relationships with this family members and children, and that he could continue with his educational pursuits and/or obtain employment. Should he be able to maintain his sobriety for such an extended period of time, he would be, at the end of his period of supervision, unlikely to return to alcohol use given gains made while sober."

29Should the court make an order that places Mr. Moonias in the community under supervision, Dr. Pearce recommends the following conditions be included, set out in detail at p.30 of his report.

1. Mr. Moonias should complete rehabilitative programs while incarcerated and after he is released into the community, including programs for social skills, anger management and substance abuse.
2. Mr. Moonias should be prescribed disulfivam, an anti-alcohol medication, once released into the community and compliance strictly monitored.
3. Mr. Moonias should abstain from the consumption of alcohol and non-medically prescribed drugs, and be subject to random urine screening.
4. Mr. Moonias should resume contact with Dr. Brockwell or another mental health professional.
5. Mr. Moonias should be subject to intense supervision in the community, which would include regular unannounced visits by probation and parole officers.
6. If Mr. Moonias enters into an intimate relationship, that partner should be contacted and informed of Mr. Moonias' history.
7. Mr. Moonias should continue with his studies and vocational aspirations.

30In cross examination, Dr. Pearce noted that Mr. Moonias had a limited insight into his problematic use of alcohol and violence, although he was aware that his alcohol consumption led to violence. Better insight could be gained, Dr. Pearce notes, with ongoing treatment and an increased level of maturity.

31Dr. Pearce also agreed that if one took alcohol out of the picture, the risk assessment could change. This is consistent with his conclusion that treatment and abstention would reduce the risk of re-offending. When asked if the risk could be reduced in three years with treatment, Dr. Pearce agreed it was possible, although he would need to scrutinize the programming Mr. Moonias completed in order to offer an informed and principled risk assessment at that time.

32Dr. Pearce agreed that a Long-Term Supervision Order could be appropriate for Mr. Moonias, noting that such orders could protect the public, monitor Mr. Moonias, provide assistance to him, reward him for compliance with conditions and punish non-compliance.

F. The Law

33The Dangerous Offender and Long Term Offender provisions of the Criminal Code are set out in Part XXIV sections 752 to 759. Section 753(1)(a) deals with Dangerous Offender Applications and states as follows:

On application made under this Part after an assessment report is filed under subsection 752.1(2), the court shall find the offender to be a dangerous offender if it is satisfied

(a) that the offence for which the offender has been convicted is a serious personal injury offence described in paragraph (a) of the definition of that expression in section 752 and the offender constitutes a threat to the life, safety or physical or mental well-being of other persons on the basis of evidence establishing

(i) a pattern of repetitive behaviour by the offender, of which the offence for which he or she has been convicted forms a part, showing a failure to restrain his or her behaviour and a likelihood of causing death or injury to other persons, or inflicting severe psychological damage on other persons, through failure in the future to restrain his or her behaviour,

(ii) a pattern of persistent aggressive behaviour by the offender, of which the offence for which he or she has been convicted forms a part, showing a substantial degree of indifference on the part of the offender respecting the reasonably foreseeable consequences to other persons of his or her behaviour, or

(iii) any behaviour by the offender, associated with the offence for which he or she has been convicted, that is of such a brutal nature as to compel the conclusion that the offender's behaviour in the future is unlikely to be inhibited by normal standards of behavioural restraint.

34A serious personal injury offence is defined in s. 752 of the Criminal Code as an indictable offence involving the use of violence against a person and for which the offender may be sentenced to imprisonment for ten years or more. Aggravated assault is a serious personal injury offence.

35Section 753.1 of the Criminal Code deals with Long Term Offender Applications. It states as follows:

(1) The court may, on application made under this Part following the filing of an assessment report under subsection 752.1(2), find an offender to be a long-term offender if it is satisfied that

(a) it would be appropriate to impose a sentence of imprisonment of two years or more for the offence for which the offender has been convicted;

(b) there is a substantial risk that the offender will reoffend; and

(c) there is a reasonable possibility of eventual control of the risk in the community.

36When the offender meets the requirements of s. 753(1) of the Criminal Code and is declared a Dangerous Offender, the court must impose either an indeterminate sentence, a determinate sentence for the offence for which the offender has been convicted and order him to be subject to long term supervision for a period that does not exceed 10 years, or impose a sentence for the offence for which the offender has been convicted. (s. 753(4) of the Criminal Code)

37In determining the appropriate sentence for a Dangerous Offender, the court must consider s. 753(4.1) of the Criminal Code which provides as follows:

753(4.1) The court shall impose a sentence of detention in a penitentiary for an indeterminate period unless it is satisfied by the evidence adduced during the hearing of the application that there is a reasonable expectation that a lesser measure under paragraph (4)(b) or (c) will adequately protect the public against the commission by the offender of murder or a serious personal injury offence.

38If the offender is not found to be a Dangerous Offender, the court may treat the application as a Long-Term Offender Application, and either declare the offender to be a Long-Term Offender or conduct another hearing, or impose a sentence for the offence for which the offender has been convicted. (s.753(5) of the Criminal Code) If the offender is found to be a Long Term Offender, the court shall impose a sentence for the offence for which the offender has been convicted and order the offender be subject to long term supervision for a period that does not exceed 10 years. (s 753.1(3) Criminal Code)

39Proceedings under the Dangerous Offender sections of the Criminal Code are part of the sentencing process. Accordingly, in addition to the provisions of s. 752 to 759.1, the court must consider the fundamental purposes and principles of sentencing set out in sections 718 to 718.2 of the Criminal Code, including considering less restrictive sanctions if it would attain the same sentencing objective as a more restrictive sanction. The court must also pay particular attention to the circumstances of Aboriginal offenders. Particularly important in the context of a Dangerous Offender Application are the principles of proportionality and restraint. (s.718.1 and s.718.2(a) and (e) of the Criminal Code) (see R. v. Johnson, 2003 SCC 46 , [2003] 2 S.C.R. 357 at para 28)

40The Supreme Court of Canada in R. v. Gladue, [1999] S.C.J. 19 considered in detail sentencing principles, including those involved with sentencing Aboriginal offenders. Gladue did not change the duty of a sentencing judge to impose a fit sentence. Rather, courts must recognize that sentencing of Aboriginal offenders requires a consideration of their unique circumstances, including systemic and background factors that may have played a part in bringing the offender before the court. While it is important to consider the particular circumstances of Aboriginal offenders and the principles of restorative justice, the sentencing objectives of denunciation and deterrence must be given due consideration, especially for serious violent offences. The relative weight to be accorded to each sentencing principle or objective will vary depending on the circumstances of the offence and the offender.

41In R. v. Ipeelee, 2012 SCC 13 , [2012] S.C.J. No. 13, the Supreme Court of Canada reaffirmed that it is the duty of sentencing judges to consider the particular circumstances of Aboriginal offenders and apply the Gladue principles in every case.

42Ipeelee involved a case of breach of a Long-Term Supervision Order. The court noted that rehabilitation was a key feature in the Long-Term Offender regime that distinguished it from the Dangerous Offender regime. As such, the sentencing objective of rehabilitation, including all other sentencing objectives in the Criminal Code, must be given due consideration and afforded appropriate weight in every case. At para 87:

The sentencing judge has a statutory duty, imposed by s. 718.2(e) of the Criminal Code, to consider the unique circumstances of Aboriginal offenders. Failure to apply Gladue in any case involving an Aboriginal offender runs afoul of this statutory obligation. As these reasons have explained, such a failure would also result in a sentence that was not fit and was not consistent with the fundamental principle of proportionality. Therefore, application of the Gladue principles is required in every case involving an Aboriginal offender, including breach of an LTSO, and failure to do so constitutes an error justifying appellate intervention.

43I must bear in mind, however, that the paramount purpose of the Dangerous Offender legislation is to protect the public. It is a preventative detention scheme designed to address those offenders with a propensity for serious crimes of violence. While it is certainly appropriate to consider issues of rehabilitation and the treatability of an offender given his particular behaviours, that inquiry must be conducted within the context of the broader overarching purpose of the legislation; to protect the public. Still, due consideration must be given to all the sentencing objectives set out in the Criminal Code, paying particular attention to the circumstances of Aboriginal offenders.

44The burden of proof rests with the Crown to establish beyond a reasonable doubt the elements contained in s. 753(1)(a) of the Criminal Code, namely that

1. the offender has been convicted of a serious personal injury offence, and
2. he constitutes a threat to the life, safety or physical or mental well-being of others because of a pattern of repetitive behaviour that will likely cause death, injury or serious psychological damage, or a pattern of persistent aggressive behaviour showing substantial indifference to the reasonably foreseeable consequences of such behaviour.

45The patterns of behaviour described in s. 753(1)(a) of the Criminal Code are determined not only by the number of offences, the predicate offence being one within the pattern, but also the similarity in the offender's behaviour on these occasions. (see R. v. Langevin (1984), 11 C.C.C. (3d) 366 (OntC.A.)). There may be differences, but core similarities must exist in order for the pattern to be established.

G. Analysis

1. Is Steve Moonias a Dangerous Offender within the meaning of section 753.1 of the Criminal Code?

46Steve Moonias is a 32 year old Aboriginal male who has led a troubled life, fraught with childhood and adolescent trauma. He was sexually and physically abused as a child. He grew up in a community where the abuse of alcohol and the inevitable violence that it spawned was common. When he was 17 years old he witnessed a homicide. He lost a brother to suicide in 2007. Both his parents experienced abuses within the residential school and day school system. There is no doubt that this combination of systemic and background factors have contributed to Mr. Moonias coming before the court. I take these factors into account in assessing the Dangerous Offender Application.

47Mr. Moonias' criminal record, reviewed earlier in these reasons, includes eight convictions for crimes of violence between 2002 and 2009 in addition to the two aggravated assaults from December 16, 2010. The five convictions for aggravated assault all involved the use of weapons; a board with a nail on one occasion and a knife in the other four incidents. With respect to all of these incidents, Mr. Moonias was bound either by a probation order or a recognizance of bail, and committed the violent offences while under supervision under court orders in the community. In respect of all of these crimes, save for the conviction for assaulting a peace officer, Mr. Moonias was intoxicated.

48By the time Mr. Moonias embarked on his criminal conduct, his substance abuse was prevalent and well-formed. Over the period spanning his criminal record, he participated in forms of counselling and treatment to address his addiction. In most cases, he participated in these programs and expressed a resolve to stop drinking. Unfortunately, Mr. Moonias was unable or unwilling to maintain that resolve, and a pattern emerged: Mr. Moonias continued to drink and commit violent crimes.

49When I consider the number of offences committed by Mr. Moonias as well as the similarities not only in the offences per se but in his behaviour, I am satisfied that the Crown has proven a pattern of repetitive behaviour and persistent aggressive behaviour within the meaning of s. 753(1)(a) and (b) of the Criminal Code.

50Has the Crown established,

1. that this pattern of repetitive behaviour shows a failure on Mr. Moonias' part to restrain his behaviour and a likelihood of causing death or injury to others through a failure to restrain his behaviour; or
2. that this pattern of persistent aggressive behaviour shows a substantial degree of indifference on Mr. Moonias' part regarding the reasonably foreseeable consequences of his behaviour on others?

51Dr. Pearce, in his testimony and in his report, expressed the opinion that Mr. Moonias represented a moderate to high risk to reoffend violently. That opinion emerges from the risk assessment he conducted. That assessment was essentially unchallenged, although Dr. Pearce acknowledged that the VRAG assessment may not be as precise with respect to Aboriginal offenders. This did not, however, change his assessment. It is evident from Mr. Moonias' criminal antecedents that he has been unable to restrain his behaviour. The risk remains.

52Dr. Pearce also opined with respect to Mr. Moonias' indifference to the reasonably foreseeable consequences of his behaviour. At p. 27 of his report:

"... Mr. Moonias has previously received programming targeting relevant criminogenic variables. He has indicated a desire to, for example, avoid alcohol use in perpetuity, claiming he had 'learned his lesson'. Notwithstanding same, he has repeatedly returned to use of alcohol, with significant consequences."

53I am mindful that Mr. Moonias' circumstances, particularly his upbringing, have contributed to a diminished ability to gain sufficient insight into his behaviour and address that behaviour in a meaningful manner. While these circumstances assist in understanding the root causes of his addiction, it is clear that Mr. Moonias' conduct, in persistently abusing alcohol, with full knowledge of the consequences of such use, demonstrates a substantial degree of indifference to the reasonably foreseeable consequences of his behaviour.

54For these reasons, I am satisfied that the Crown has established beyond a reasonable doubt the elements set out in s. 753.1(1)(a) and (b) of the Criminal Code, and that Mr. Moonias is a threat to the life, safety or physical or mental well-being of other persons. I find Steve Moonias to be a Dangerous Offender.

2. What is the Appropriate Disposition?

55Preventative detention, particularly for an indeterminate period, severely limits certain rights and freedoms of an offender. The legislative objectives embodied in these provisions are geared towards the protection of the public from "a very small group of offenders whose personal characteristics and particular circumstances militate strenuously in favour of preventive detention" R. v. Lyons, [1987] 2 S.C.R. 309. Section 753(4.1) of the Criminal Code is designed in large part to consider this objective in the context of the sentencing principles of proportionality and restraint. Before imposing an indeterminate sentence of imprisonment for a Dangerous Offender, the Court must consider whether there is a reasonable expectation that a lesser measure, whether a determinate jail sentence in addition to a Long-Term Supervision Order or a determinate sentence alone, could adequately protect the public.

56The term "reasonable expectation" is not defined in the Criminal Code. Reasonable possibility may be viewed as too low of a bar to set to protect the public. More certainty would be required to persuade a sentencing judge that the public would be adequately protected without an indeterminate sentence of imprisonment. On the other hand, reasonable probability may be too onerous a standard to meet given the vagaries of prognostication and the difficulty in predicting future behaviour. However, when I consider the legislative objectives of the Dangerous Offender provisions, the protection of the public is the overarching objective, and a degree of certainty is necessary when conducting this assessment. A hope or a possibility that the public could be protected without an indeterminate jail sentence is insufficient.

57Mr. Moonias has made attempts to deal with his alcohol addiction. He has attended treatment programs while incarcerated and while under supervision in the community. These efforts have met with marginal success. While Mr. Moonias expresses a desire to change and undertake counselling, and does participate in rehabilitative programs, he invariably relapses and finds himself before the courts. Mr. Moonias requires intensive substance abuse treatment. He must not consume alcohol. Absent treatment and abstention, it is very likely that Mr. Moonias will slip back into previous behaviour with significant and perhaps tragic consequences.

58On the other hand, Dr. Pearce is of the opinion that a determinate sentence with a Long-Term Supervision Order could be appropriate for Mr. Moonias. Dr. Pearce expressed cautious optimism for a positive prognosis based on the following factors:

1. Mr. Moonias has participated in alcohol treatment in the past and has shown a level of cooperation and commitment;
2. recent psychiatric intervention (e.g. anti-depressant medication) as well as Mr. Moonias' desire to continue with mental health counselling may assist with Mr. Moonias' dysthymia, which may contribute to his use of alcohol;
3. Mr. Moonias is amenable to the use of anti-alcohol medication; and
4. it is essential that Mr. Moonias be continually monitored with respect to his mood and return to substance abuse.

59Given Dr. Pearce's opinion, and noting particularly that certain structures, supports and conditions must be imposed during the term of Mr. Moonias' incarceration and subsequent supervision, I am satisfied, when I consider all of the factors, that there is a reasonable expectation that a determinate sentence followed by a lengthy period of supervision will adequately protect the public. What then is the appropriate length of the determinate sentence and the Long-Term Supervision Order?

60There is a joint submission that Mr. Moonias be sentenced to a term of imprisonment of five years less presentence custody on the offences of aggravated assault and breach of probation. That submission was crafted over a series of judicial pretrials, taking into account Mr. Moonias' personal circumstances. There can be no question that Mr. Moonias' background, particularly his formative years, raised in a home and a community filled with violence and substance abuse, contributed in part to his being before the courts. These systemic and background factors must be taken into account in arriving at a fit sentence.

61On the evidence before me, I am satisfied that the joint submission of a jail sentence of 5 years less presentence custody, albeit on the low end of the range given the circumstances of the offences and Mr. Moonias' circumstances, is reasonable.

62With respect to the duration of the Long-Term Supervision Order, I consider the same factors noted in arriving at the determinate sentence. I take into account as well the expert opinion of Dr. Pearce and his prognosis and treatment plan for Mr. Moonias. While Dr. Pearce does not offer an opinion as to the length of a Long-Term Supervision Order, it is reasonable to infer from his evidence that Mr. Moonias' rehabilitative journey is a long one. Mr. Moonias is at a moderate to high risk to reoffend violently without intervention. That is a significant risk to the public. The intervention proposed is arduous and multi-faceted and requires ongoing monitoring and supervision. An extended period of time is needed to provide Mr. Moonias with the structure and support he needs to enable him to succeed, and the supervision and monitoring necessary to protect the public. This is particularly important given the nature and extent of Mr. Moonias' alcohol addiction and the need for medication to ensure abstinence.

H. Disposition

63Steve Moonias is found to be a Dangerous Offender and shall be sentenced as follows:

1. On the charges of aggravated assault, 27 months credit for 27 months of presentence custody, a term of imprisonment of 33 months on each charge to be served concurrently. On the charge of breach of probation, 12 months imprisonment to be served concurrently.

2. Pursuant to section 753(4)(b) of the Criminal Code, there will be a Long-Term Supervision Order for a period of 8 years.

64Aggravated assault is a primary designated offence. There will be an order requiring Mr. Moonias to provide such samples of bodily substance as are reasonably necessary for the purposes of forensic DNA analysis.

65There will be an order under section 109 of the Criminal Code prohibiting Mr. Moonias from possessing any firearms, ammunition or explosive substances for life.