COURT OF APPEAL FOR ONTARIO

CITATION: R. v. Hepp, 2014 ONCA 555

DATE: 20140721

DOCKET: C54169

Hoy A.C.J.O., Gillese and Lauwers JJ.A.

BETWEEN

Her Majesty the Queen

Respondent

and

Gregory Hepp

Appellant

Brian H. Greenspan and Seth Weinstein, for the appellant

Eric Siebenmorgen and Nathan Kruger, for the respondent

Heard: July 15, 2014

On appeal from the sentence imposed on July 22, 2011, by Justice R.D. Gordon of the Superior Court of Justice.

By the Court:

[1] The appellant, a 17-year-old at the time of the offences, received a life sentence with eligibility for parole after seven years, for his role in the brutal murder of a 15-year-old girl who wanted to be his girlfriend.

[2] He appeals against the imposition of an adult sentence.

BACKGROUND IN BRIEF

[3] The victim accompanied the appellant and his older companion, Kris Lavallee, to a campsite in a remote forest location outside of Sudbury. After killing her, the appellant and Lavallee burned her body, dismembered the remains and buried them in an effort to destroy the evidence.

[4] The victim was missing for over a month before her remains were discovered. Due to the condition of the remains, it was difficult to establish a medical cause or the instrumentality of death.

[5] The Crown theory at trial was that the appellant and Lavallee acted in concert in killing the victim and burning and dismembering her corpse. The appellant testified that Lavallee was solely responsible for the offences and that he took no part in them.

[6] After deliberating for approximately ten hours over two days, the jury convicted the appellant of second degree murder and offering an indignity to a dead body. The Crown then brought an application pursuant to s. 64(1) of the Youth Criminal Justice Act, S.C. 2002, c. 1 (the “YCJA”) to have the appellant sentenced as an adult.

[7] Despite a positive pre-sentence report and psychiatric assessment which found that the appellant was a low to moderate risk of violence in the future, the trial judge sentenced him as an adult. In doing so, he gave full, thoughtful reasons.

[8] At p. 2 of those reasons, the trial judge reminded himself that in R. v. D.B., 2008 SCC 25, [2008] 2 S.C.R. 3, the Supreme Court said that there is a separate legal and sentencing regime for young people because they have heightened vulnerability, less maturity, and a reduced capacity for moral judgment, which together entitles them to a presumption of diminished moral blameworthiness or culpability. As a result, the Crown and not the young person has the burden of showing that the presumption of diminished moral culpability has been rebutted and the young person is no longer entitled to its protection.

[9] He then carefully considered the factors in s. 72 of the YCJA to determine whether the presumption had been rebutted. He concluded that it had and explained why a youth sentence would not be of sufficient length to hold the appellant accountable for his actions. At p. 17 of the reasons he stated:

The seriousness of this offence along with the circumstances surrounding it are of concern including, in particular, [the appellant’s] involvement in the murder, his involvement in the desecration of [the victim’s] remains, and most tellingly, in the detached and indifferent manner in which he continued with his life thereafter.

[10] Further, he noted, unlike a youth sentence, an adult sentence would come with lifetime supervision following parole, which would ensure that the appellant’s treatment needs “receive long term management well beyond his time in custody” (p. 17).

THE FRESH EVIDENCE

[11] The appellant introduced fresh evidence on the appeal in the form of institutional records. The fresh evidence shows that the appellant has continued to make progress in his rehabilitation while serving his sentence, including the completion of a number of correspondence courses. It also includes an updated risk assessment by Dr. Evans which confirms that, as at the time of sentencing, the appellant poses a low to moderate risk of violence in the future. The fresh evidence also shows that since the appellant has been moved from a youth facility to an adult provisional facility, he has not received treatment for his mental health issues. It further indicates that the appellant, who was born in Germany and lived there until he was a young teenager, may wish to ultimately return to Germany.

[12] The Crown filed responding fresh evidence which indicates that the appellant is currently housed in a prison wing in which he is not completely segregated from other inmates. The evidence also shows that the appellant has repeatedly requested to remain housed in his current area. But for those requests, there is no impediment to his being housed within the general inmate population. Furthermore, the appellant’s requests to remain in his current area have impacted on his ability to access programming available to inmates within the regular prison population.

THE ISSUES

[13] The appellant raises two grounds of appeal. He submits that the trial judge:

1. mischaracterized the implied factual findings in the jury’s verdict; and

2. erred in imposing an adult sentence.

ANALYSIS

Did the trial judge mischaracterize the implied factual findings in the jury verdict?

[14] The trial judge held that the implied factual finding from the jury’s verdict for second degree murder was that the appellant had stabbed the victim. The appellant contends that this was speculative reasoning on the part of the trial judge as it was not a necessary implication of the jury’s verdict. He points to the fact that the jury had been told that there were two possible routes to conviction in this case – that the appellant had stabbed the victim or that he was a party to the assault that led to her death.

[15] On the facts of this case, we do not accept this submission. The judge was fully alive to his responsibilities in terms of fact finding. At p. 12 of his reasons, he correctly recites the legal principles governing the fact-finding duties of a trial judge embarking upon a sentencing hearing following a jury’s verdict. He noted that because he did not have the benefit of expressed findings of fact, he had to determine the facts that reasonably flowed from the jury findings. He refers to R. v. Ferguson, 2008 SCC 6, [2008] 1 S.C.R. 96, stating that he was bound by the expressed and implied factual implications of the jury’s verdict and where the factual implications are ambiguous, he had to make his own independent determination of the relevant facts.

[16] In light of the jury instruction in this case, a finding of guilt required the jury to conclude that the appellant had participated in the assault on the victim from which her death ensued, and that his participation was of such a degree that it was a “substantial and integral cause of the death”. The jury was also instructed that if they were satisfied beyond a reasonable doubt that the appellant and Lavallee had acted in concert, they did not have to determine who, as between the two, struck the fatal blow

[17] In the agreed statement of facts filed on this appeal, there is an admission by Lavallee, to a fellow musician, that he and the appellant had killed the victim. According to Lavallee, he had started to choke her and the appellant then reached over and stabbed her once. Dr. Fairgrieve gave evidence that ribs six and seven on the right side of the victim’s body had an indentation and sharp force trauma caused by a metal implement. The insert and orientation of the wound was such that it was from the front of the body to the back. He also identified that thoracic vertebra number four exhibited sharp force trauma caused by a bladed instrument.

[18] As a practical matter, in light of the evidence, the only way in which the jury could have found that the appellant participated in the assault to such a degree that it was a substantial and integral cause of the death is if he inflicted at least one stab wound on the victim.

Did the trial judge err in imposing an adult sentence?

[19] The appellant argues that despite the seriousness of the offence, an adult sentence was not necessary to achieve the objectives of the YCJA. He contends that his progress by the time of sentencing – as well as his progress since then – demonstrates his motivation to change and his capacity for rehabilitation. He maintains that imposition of the maximum youth sentence, in addition to pre-trial custody of over two years, was sufficient to hold the appellant accountable.

[20] We see no basis on which to interfere with the trial judge’s imposition of an adult sentence.

[21] The trial judge’s reasons show a full and balanced assessment of all of the factors set out in s. 72(1) of the YCJA. He identified and considered the practical consequences of imposing an adult sentence, rather than a youth sentence. Further, he acknowledged the remarkable progress that the appellant had made since the offences and the remorse that he had demonstrated. In assessing the appellant’s moral culpability, the trial judge expressly took into consideration Dr. Evans’ evidence regarding the appellant’s history of substance abuse and his diagnosed mood order. The trial judge addressed the evidence regarding the appellant’s mental condition and identified treatment needs. In this regard, it is to be noted that the trial judge ordered that the appellant be placed in a youth facility until his 21st birthday and then be transferred to an adult provincial facility until the completion of his sentence.

[22] However, as explained above, the trial judge ultimately concluded that a youth sentence would not be of sufficient length to hold the appellant accountable for his actions.

[23] The fresh evidence, in the main, is confirmative of the evidence before the trial judge. It does not alter the balancing which the trial judge undertook in determining that an adult sentence was necessary. As for the fresh evidence indicating that the appellant may wish to ultimately return to Germany, we accept the Crown’s submission that pursuant to the International Transfer of Offenders Act, S.C. 2004, c. 21 and the Convention on the Transfer of Sentenced Persons, 21 March 1983, Can. T.S. 1985 No. 9 (entered into force 13 May 1985), a mechanism exists for the appellant to seek to have Canada and Germany agree to transfer him to Germany to serve the remainder of his sentence.

DISPOSITION

[24] Accordingly, the appeal is dismissed.

Released: July 21, 2014 (“A.H.”)

“Alexandra Hoy A.C.J.O.”

“E.E. Gillese J.A.”

“P. Lauwers J.A.”