Court Information
Court: Ontario Court of Justice
Before: Justice M.M. Rahman
Sentencing Hearing: November 6, 2019
Reasons for Sentence Released: January 14, 2020
Parties and Counsel
Between:
Her Majesty the Queen
— and —
J.H.
Counsel:
- Daniel Galluzzo, for the Crown
- Shauna Pemberton, for J.H.
Notice
This is a case under the Youth Criminal Justice Act. Any information that could identify the young person or any victim or witness in this matter shall not be published in any document or broadcast or transmitted in any way. Failure to comply with this order is an offence under section 138 of the Act.
Reasons for Sentence
1. Overview
1On May 31, 2019, I found J.H. guilty of robbery and aggravated assault. J.H. was involved in a group attack on the victim, A.B., and his three friends. During the attack, A.B. was punched and kicked several times by several attackers. He was also stabbed 16 times, including eight times in his torso. I must now determine the appropriate sentence for these serious offences.
2The Crown says that J.H. should be sentenced to a total of three years of supervision. That sentence should be broken down as 24 months of custody and supervision (divided, as required, into 16 months of custody and 8 months of supervision) and 12 months of probation. The Crown also asks that the court impose a two-year weapons prohibition under s. 51 of the Youth Criminal Justice Act (YCJA), and a DNA order under s. 487.051 of the Criminal Code.
3J.H. says that he should be sentenced to a deferred custody order for six months, followed by a period of probation. Alternatively, he says that, if this court finds that a custodial sentence is appropriate he should be sentenced to open custody. He takes no issue with the conditions of the probation order suggested by the Crown, nor with either of the ancillary orders.
2. Facts of the Offences
4The facts of the offences are fully set out in my reasons for judgment at trial. I will only include a brief summary here.
5The victim of this offence, A.B., was hanging out at a local community centre playground with three of his friends on June 22, 2018. While the four young people were talking on the playground, they were confronted by another, larger group of people. J.H. was part of that larger group. Members of that second group, including J.H., told A.B. and his friends to hand over their phones. Very quickly, J.H.'s group swarmed A.B. and his friends. A.B. ended up on the ground being punched and kicked by several attackers. During the attack, A.B. was stabbed 16 times by one or more of the assailants. A.B. suffered life-threatening injuries and required hours of surgery to repair internal damage.
6Because I did not find J.H. responsible for all of the harm that A.B. suffered during the attack, it is helpful to set out exactly the conduct that J.H. is being sentenced for.
7I found that J.H. was one of the people who confronted A.B. during the initial encounter on the playground equipment. I further found that J.H. was a co-perpetrator of the robbery because he was part of the plan to rob A.B. and his friends of their phones. I also found that J.H. punched A.B. at the outset of the attack. However, I did not find that J.H. was responsible for stabbing A.B. or that he even knew a knife was involved in the attack. I found him guilty of aggravated assault on the basis that he knew that bodily harm would result from the group attack on A.B. Therefore, I cannot find that he knew that A.B. would suffer the degree of bodily harm that he actually did, including bodily harm that would endanger his life.
3. Impact on the Victim
8A.B.'s mother provided a victim impact statement to the court. It is not surprising that the life-threatening attack on her son has had a huge impact on her family's life.
9The victim impact statement details the physical and psychological impact that this offence has had on A.B. A.B. has undergone extensive physiotherapy to help him regain the use of the arm that suffered defensive stab wounds. He has no feeling in part of his hand and arm and may never get it back. He still suffers pain in his arm and he still bears the scars of being stabbed 16 times on his arm and his torso. The victim impact statement also discusses the horrific experience that A.B.'s parents had to go through when they learned that their son had been stabbed, and the anxiety they continue to feel about their son's well-being even after the incident. There is no question that the offence took an enormous physical and emotional toll on A.B. and his family. Moreover, although A.B.'s three friends did not provide victim impact statements, it was apparent from the testimony during the trial that being swarmed themselves, and seeing their friend suffer life-threatening injuries, had a significant impact on them as well.
4. Circumstances of the Offender
10The court had the benefit of both a pre-sentence report (PSR), and a psychological assessment report prepared under s. 34 of the YCJA.
11J.H. was 16 years old at the time of the offence, and 17 years old at the time of trial. He will be 18 years old in about 6 months from now. He is a first offender who has never been in trouble with the law before.
12J.H. is fortunate to have a supportive family. He enjoys a close relationship with his mother. He also has a close relationship with his father as well and his father reports taking a more proactive role in J.H.'s life since his son was charged. Both of J.H.'s parents provided a great deal of insight into their son's personality.
13Even though they both support their son's assertion that he did not commit the offence, both parents recognize that their son had fallen in with a negative peer group. J.H.'s father observed that J.H.'s behaviour started to change when he entered high school. His father believes that J.H. started following the wrong crowd and went from being a leader to a follower. Both of his parents have noticed a positive change in their son's behaviour since he was charged with these offences. Although J.H. denies having committed the offences, he does have some insight into how he ended up before the court. J.H. told the author of the PSR that he has stopped associating with a negative peer group and is trying to focus spending time with his family and a couple of positive friends.
14J.H. has been doing well at school in the past year. The psychological report describes his progress as excellent compared to the past. J.H. had serious behavioural problems in the past. His school records detail a history of negative interactions with teachers and peers. He was suspended several times because of physical altercations, provoking fights, bullying, and using disrespectful and crude language towards teachers.
15The psychological report provides some insight into the root of J.H's problems at school. J.H. was diagnosed with ADHD when he was seven years old. His ADHD led to problems as early as elementary school. The psychological report also relied on standardized assessments that give insight into J.H.'s behavioural issues. One of those assessments, the MACI test, revealed that J.H. seems hypersensitive to criticism and has a low frustration tolerance. He alternates between angry outbursts and withdrawal and sulking as a response to criticism. He is easily annoyed or frustrated by others, and often responds with overt cruelty or withdrawal into being grumpy, irritable, or sullen. The report also suggests that J.H. has some self-awareness. J.H. describes himself as a hotheaded person who is angered when "slowed down by others' mistakes" and not given recognition for doing good work. He also reports that he almost always becomes furious when he is criticized in front of others and that when he experiences anger he sometimes feels like hitting someone.
16J.H. also submitted several letters from family friends and relatives. Those letters speak very positively about J.H.'s character. They describe him as being a good big brother to his younger siblings, a person who has a big heart, and a boy who is known to attend church regularly. J.H. also wrote a letter to the court and A.B. and his family. Again, although J.H. maintains his innocence, he does express regret for his actions that night and acknowledges that he was with a negative peer group. J.H. said that, rather than watching A.B. get attacked, he should have left to get help.
5. Parties' Positions
17Crown counsel, Mr. Galluzzo, says that J.H. should receive a 24-month custody and supervision order followed by 12 months of probation. Mr. Galluzzo argues that the gravity of the offence, and J.H.'s participation in it, warrant a stiff sentence. He says that, even though there is no evidence J.H. was involved in the stabbing or knew that a knife would be used, he would at least have known that A.B. would suffer significant blunt force trauma by being swarmed. He says this is especially so because J.H. was one of the first aggressors, who threw one of the first punches. Mr. Galluzzo says that J.H. did not just encourage others but was the original catalyst for the attack because he participated in the beginning of it. That places his degree of participation at a higher level. He also cites as aggravating the serious injuries and significant impact that the attack had on A.B. Mr. Galluzzo says that a significant period of custody is necessary to hold J.H. accountable, and give proper effect to denunciation and deterrence.
18In support of his submission that a period of custody is required, Mr. Galluzzo also relied on a number of cases involving similar types of offences committed by young people. In particular, he relied on this court's decisions in R. v. A.S. and R. v. N.A. Those decisions concern offenders who, like J.H., had a lesser role in the ultimate harm the victims suffered, but were nonetheless part of a group assault. Mr. Galluzzo submits that J.H.'s participation and blameworthiness is higher than the offenders in both cases.
19J.H.'s counsel, Ms Pemberton, recognizes that the seriousness of the offence requires a sentence that is at least a "gateway to custody." Ms Pemberton says that J.H. should receive a deferred custody order for six months under s. 42(5) of the YCJA. She says that s. 42(5)(a) does not disqualify her client from receiving such a sentence because J.H. did not cause or attempt to cause serious bodily harm, but only bodily harm.
20Ms Pemberton also says that her client should not bear full responsibility for the mob attack that took place, in light of the court's finding that he only confronted A.B. and threw two punches. Significantly, there is no evidence that J.H. had a knife, or knew of a knife. Ms Pemberton says that it makes more sense to allow J.H. to continue on a path where he benefits from his family and other community supports, rather than an institutional setting where he may again be exposed to negative peer influences. Finally, Ms Pemberton says that if J.H. is disqualified from receiving a deferred custody order, he ought to receive a sentence involving open custody.
6. The YCJA's Sentencing Provisions
21Section 38 of the YCJA contains the purpose, principles, and objectives of sentencing young people. The YCJA stresses holding the young person accountable for his or her actions. The main purpose of sentencing, set out in s. 38(1), is to hold a young person accountable for an offence through the imposition of just sanctions that have meaningful consequences while promoting his or her rehabilitation and reintegration into society.
22Like the Criminal Code, s. 38(2)(c) of the YCJA also requires a sentence to be proportionate to the gravity of the offence and degree of responsibility of the offender. Proportionality plays a dual role of censure and restraint by ensuring that "the degree of censure required to express society's condemnation of the offence is always limited by the principle that an offender's sentence must be equivalent to his or her moral culpability, and not greater than it." Also like the Criminal Code, the Act contains a parity provision (s. 38(2)(b)), requiring a sentence to be "similar to the sentences imposed in the region on similar young person found guilty of the same offence committed in similar circumstances."
23The YCJA also emphasizes restraint. Paragraph s. 38(2)(d) of the YCJA requires courts to consider all available sanctions other than custody that are reasonable in the circumstances. In the same vein, s. 38(2)(e)(i) says that a sentence must be the least restrictive sentence that can achieve the purpose set out in s. 38(1). At the same time, s. 38(2)(e)(ii) says that the sentence must be the one most likely to rehabilitate, and one that promotes a sense of responsibility in the young person, and acknowledges the harm done to victims and the community. The Act also makes clear (in s. 38(2)(a)) that any sentence a young person receives may not result in a punishment greater than the punishment appropriate for an adult convicted of the same offence in similar circumstances.
24Finally, the YCJA sets out a number of factors that a court must take into account when sentencing a young person. Those factors are set out in s. 38(3) and include the following:
(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
(f) any other aggravating or mitigating circumstances related to the young person or the offence that are relevant to the purpose or principles of sentencing
25Though many of these principles and objectives overlap with those applicable to adult offenders, there are some key differences. The YCJA has a stronger focus on rehabilitation. Indeed, s. 38(1) which sets out the purpose of sentencing refers to rehabilitation alongside the imposition of "just sanctions" as a means of contributing to the long-term protection of the public. In other words, the YCJA recognizes that the public is protected not just by holding a young person accountable, but also by ensuring his or her rehabilitation. Another significant difference is that general deterrence is not an objective of youth sentencing. A court can impose a sentence to denounce the specific crime and try to deter the specific offender it is sentencing. But a court cannot impose a sentence with the objective of deterring other young people. In short, the YCJA does not allow a sentencing judge to use a sentence to send a message to other young people who might be inclined to commit the same offences.
7. The Appropriate Sentence
26Trial judges often comment that sentencing is one of the most difficult tasks that judges are asked to perform. That is especially so in the case of a young person who has committed a serious offence which has had devastating consequences.
27In considering the factors set out in s. 38(3), it is clear that J.H. participated in a violent offence and would have recognized that A.B. would suffer some degree of bodily harm. I accept the Crown's submission that he acted as something of a catalyst for the group attack. J.H. set out to participate in a robbery and he intentionally harmed A.B by punching him. On the other hand, I cannot find that J.H. knew, or ought have known, that A.B. would suffer the serious, life-threatening injuries that he suffered. Whatever sentence I impose cannot hold J.H. responsible for those injuries and cannot be as high as a sentence I would give to a young person who caused those injuries. However, even if A.B. had not been stabbed that night, the group attack on him and his friends would still have been terrifying. This was a senseless, unprovoked attack on four young people who were simply minding their own business, trying to enjoy their evening at a local community centre.
28Although I accept that J.H.'s actions acted as a catalyst, I am not satisfied that he was the ringleader of the group as the Crown suggests. In making this submission, Crown counsel relies on T.C.'s testimony that described J.H. as the ringleader. The difficulty with that submission is that it relies on her opinion, formed in a moment, about who was in charge. It may be that T.C. focussed on J.H. because she knew him and he was one of the people demanding that her friends turn over their phones. To be clear, I do not doubt that J.H. was one of the people demanding the group's phones, but on all the evidence, it was clear that more than one person in the group was making that demand. I accept that J.H. was someone whose actions helped escalate the confrontation, but I cannot accept that he was in command of the group or its leader.
29Since accountability is the main purpose of youth sentencing, I have to determine the sentence that is capable of holding J.H. accountable for this offence. In R. v. A.O., the Court of Appeal explained that "accountability" under the YCJA is the same as the adult sentencing principle of retribution. The court held that a youth court must assess the moral culpability of a young person by considering the offender's intentional risk taking; the consequential harm the young person caused; and the normative character of the young person's conduct, which includes a consideration of societal values. Considering those three factors in this case, J.H.'s moral culpability is high. In terms of intentional risk taking, J.H. was the co-perpetrator of a robbery and initiated the assault on A.B. The consequential harm he caused was significant. Again, even though J.H. was not involved in stabbing A.B. he was a participant in what turned into a group attack. Finally, in terms of the normative character of the conduct, the unprovoked attack against four innocent friends who were doing nothing wrong is an affront to societal norms. As the Court of Appeal observed in R. v. C.N., swarming incidents like this one are cowardly attacks and are of great concern to the community. That is especially so when they occur at a community centre playground, the very place that young people should feel safe when trying to enjoy time with their friends. It is apparent from considering the three factors from A.O. that J.H. has a high degree of moral blameworthiness.
30Balanced against this high degree of blameworthiness is the need to impose a sentence that also gives effect to J.H.'s rehabilitation. J.H. has clearly had significant behavioural issues in the past. However, it seems that, since he was charged with these offences, he has been doing much better. His performance at school has improved, and his family has noticed a marked change in his behaviour. He is fortunate to have strong family support. As mentioned above, J.H. himself seems to recognize that he needs to stay away from the negative peer group that he recognizes got him into legal trouble. I am mindful of the concern Ms Pemberton raises about a custodial sentence possibly exposing her client to those negative influences again.
31That leaves the difficult question of how to give effect to the purposes of the Act and what is the proper sentence that will do so.
32I cannot agree with Ms Pemberton that a deferred custody order is appropriate in this case. First, it seems that J.H. is disqualified from receiving such a sentence because A.B. suffered serious bodily harm. Paragraph 42(5)(a) of the YCJA says that a young person cannot receive deferred custody if, in the commission of the offence, the young person causes or attempts to cause serious bodily harm. Second, even if the offence is not one where J.H. attempted to or cause "serious bodily harm" I find that such a sentence would not be consistent with the purpose and principles of sentence set out in s. 38. Simply put, it would not be sufficient to hold him accountable for this offence, nor would it be proportionate to the seriousness of the offences and his degree of responsibility.
33Some period of custody is required for this offence to hold J.H. properly accountable. However, I find that the period of custody suggested by the Crown is more than what is required to achieve the purpose set out in s. 38(1). A two-year sentence is not the least restrictive sentence that is available in the circumstances. I also find that it is more severe than sentences given to similar offenders for similar offences. Further, although the objective of denunciation is significant here, given the seriousness of the offences, I cannot find that specific deterrence is. I am satisfied that any period of custody would be sufficient to deter J.H. from committing any further offences.
34In my view a sentence of 12 months of custody and supervision followed by 12 months of probation is appropriate in this case. That length of sentence falls within the range of sentences for similar offenders who have committed similar offences. It is long enough to hold J.H. accountable while also considering the important question of his rehabilitation. The next issue I have to decide is whether the custodial period of the sentence should be served in open or closed custody.
35I am required to determine the level of custody after considering the factors set out in s.24.1(4) of the now-repealed Young Offenders Act. Mr. Galluzzo argues that the sentence ought to be served in closed custody, although he quite fairly acknowledged that only two of the factors in s. 24.1(4) favoured closed custody. Specifically, Mr. Galluzzo points to s. 24.1(4)(i), the seriousness of the offence, and s. 24.1(4)(iv), the interests of society.
36I do not agree with the Crown that the sentence should be served in a closed custody setting. Rather I agree with Ms Pemberton that open custody is more appropriate. Although the offence and the circumstances surrounding it were serious, in my view all the other factors in s. 24.1(4) favour an open custody sentence. I recognize that determining the level of custody does not simply involve counting up how many factors in s. 24.1(4) weigh for or against a particular level of custody. However, when I consider the least restrictive disposition in light of those factors, I find that open custody is sufficient. J.H. has never been in trouble with the law before. I cannot find that it is either in his interest, or the interests of society, to place him in a closed custody. Putting J.H. in closed custody is not necessary because I do not consider him to be a safety concern or an escape risk.
37More importantly, I am concerned that it would not be in society's interest to have J.H. put into secure custody where he would be subject to more serious offenders and therefore a very negative peer group. It is the same concern that the court expressed in A.S. where the court opted for open custody because the offenders' conduct was caused by negative peer associations.
Incarcerating [the offenders] now in secure custody with other young offenders risks exacerbating the damage already done by the influence of anti-social connections. Although the offences that they committed were serious, given the specific nature of their participation and party liability, secure custody is not essential to hold them accountable.
38Like that case, in my view, secure custody is not essential to hold J.H. accountable.
8. Conclusion
39J.H. is sentenced to 12 months of custody and supervision, which will be divided as 8 months of custody and 4 months of supervision. I order that the custody portion of the sentence is to be served in open custody. After J.H. finishes his custody and supervision, he will be on probation for 12 months, with the following conditions:
(1) He is not to have any contact directly or indirectly by any physical, electronic or other means with A.B., T.C., J.W.-L., or S.G.
(2) He is not to attend anywhere he knows the above-named persons to live, work, go to school, or any place he knows them to be.
(3) He must attend and actively participate in any assessment counselling or rehabilitative programs directed by his youth worker and complete them to the satisfaction of his youth worker.
(4) He must perform 100 hours of community service at a rate to be determined by his youth worker.
40Finally, I will impose the ancillary orders requested by the Crown. There will be an order under s. 51 of the YCJA for two years and a DNA order under s. 487.051 of the Criminal Code requiring J.H. to provide a bodily sample today for inclusion of his DNA profile in the national DNA databank.
Released: January 14, 2020
Justice M.M. Rahman
Footnotes
1I delivered reasons orally on January 10, 2020, omitting certain portions of the judgment I explained that the full reasons would be released in writing, with those sections and subject to editing for grammar. The names of the young people have also been changed to their initials. This written version takes precedence over the oral reasons in the event of any discrepancy between the two.
4R. v. Nasogaluak, 2010 SCC 6 at para. 42
6Ibid. at paras. 47-48.
7R. v. C.N., 83 O.R. (3d) 473 (C.A.) at para. 26
8Subsection 88(c) of the YCJA incorporates s.24.1 of the Young Offenders Act.
9A.S., supra, at para. 108.