Court Information
Information No.: 11-YNR3977, 11-YN1711
Ontario Court of Justice Youth Justice Court
In the Matter of the Youth Criminal Justice Act S.C. 2002, c. 1
Her Majesty the Queen v. S.L.
Before: The Honourable Justice J. S. Nadel
Date: April 2, 2012, at St. Catharines, Ontario
Protected from Publication by Section 110 and 111 of the Youth Criminal Justice Act
Appearances
J. Richardson – Counsel for the Crown
W. Brooks – Counsel for S.L.
Proceedings
Heard: In Writing
Table of Contents
Witnesses
No witnesses
Exhibits
| Exhibit Number | Description | Page |
|---|---|---|
| 2 | Presentence report dated June 17, 2011 | 1 |
| 3 | Presentence report dated February 28, 2012 | 1 |
| 4 | Psychological Assessment report | 2 |
Endorsement
Monday, April 2, 2012
Now before we proceed, some filings have to be made since they do not appear to have been made yet. Do you have, Madam Clerk, a copy of the presentence report prepared for Madam Justice Vyse dated on the 17th of June 2011? Has that been exhibited yet?
COURT CLERK: No, Your Honour.
THE COURT: All right, counsel, what I propose to do is file that report, since I am going to refer to it, and I was given a copy of it. Any objection, Mr. Brooks?
MR. BROOKS: None, Your Honour.
THE COURT: Mr. Richardson?
MR. RICHARDSON: No, thanks Your Honour.
THE COURT: All right, so that can be....
COURT CLERK: Exhibit two, Your Honour.
THE COURT: All right, Exhibit number two.
EXHIBIT NUMBER 2 – Presentence report dated June 17, 2011 – Produced and marked.
THE COURT: Exhibit number three will be the presentence report prepared for this particular sentencing. Any objection by either counsel?
MR. RICHARDSON: None, Your Honour.
MR. BROOKS: None.
THE COURT: All right, that will be Exhibit number three then. Thank you. Yes, thank you.
EXHIBIT NUMBER 3 – Presentence report dated February 28, 2012 – Produced and marked.
THE COURT: Exhibit number four will be the Psychological Assessment prepared by Dr. Wong and his staff dated February 23rd, 2012.
MR. BROOKS: No objection.
THE COURT: All right, thank you. That can be then Exhibit number four.
EXHIBIT NUMBER 4 – Dr. Wong's Psychological Assessment report – Produced and marked.
THE COURT: And since I am dealing with exhibit number four, it is my request of you both that you consent to my making an order under section 119 (1)(s) of The Youth Criminal Justice Act that will grant access to exhibit number four, the psychological assessment, to those who could assist in determining how to administer the sentence that I am going to impose in the manner most beneficial to Mr. L.. Does anyone have any objection to the order being released to the Provincial Director and his probation officer, and potentially to his parent or parents as well?
MR. RICHARDSON: No, I was going to ask for that in any event.
THE COURT: All right, then such an order will go. Before proceeding further, I am going to make some non-contentious orders. First, I make a primary designated DNA order in respect of the two counts of aggravated assault to which Mr. L. has pleaded guilty. In addition, I impose a section 51(1) order under the Youth Criminal Justice Act, prohibiting Mr. L. for two years from today's date from having in his possession any firearm, crossbow prohibited weapon, restricted weapon, prohibited device, ammunition, prohibited ammunition, or explosive substances. So that is two years, from today for those matters. Lastly, in due course Mr. L. and counsel, I am going to impose an extensive period of probation on Mr. L.. I will pronounce the length of the probation at the end of my judgment. But, for the time being once you have completed any sentence or sentences, I will impose upon you young man, you will be on a period of probation containing the following terms. Madam Clerk, I have this on my template and I will give it to you in due course.
COURT CLERK: Thank you, Your Honour.
THE COURT: The statutory terms are that you shall keep the peace and be of good behavior while you are on probation. That means obey the law, and appear before the court when required to do so by the court. You will report immediately to a probation officer and be subject to the supervision of a probation officer upon your release from custody. Thereafter, you will report to a probation officer as often as you are directed to report, and you will report to a probation officer in the manner that you are directed to report. You will promptly report to your probation officer assigned to your case any change of your employment, education or training. You can sit down sir, this will take a long time, you need not stand up. You are welcome to stand up if you want, but you are not obliged to, and if you get tired, you can sit down again as you like.
You will only reside at an address approved of by your probation officer and you will not change your place of residence without the prior permission of your probation officer. That may well be with one or the other of your parents. But you have to understand that during the period you are on probation, if you do not behave yourself, if you cannot be controlled, you can be directed to live at a group home as directed by your probation officer. As a result of that power, these terms are a little cumbersome, but they provide the following. You will provide the parent, guardian, or manager of your approved residence with the names and telephone numbers of your friends when requested to do so by them. You will not associate with or hold any communication with anyone you are directed not to associate with by the parent, guardian, or manager of your approved residence. More particularly, you will have no contact directly or indirectly with, do you have Mr. Walker's first name, the adult who was involved in this?
S.L.: Ah, it's Jeff.
THE COURT: All right, Mr. L. says it is Jeff.
MR. RICHARDSON: Yes, that's right, Jeffrey, J-E-F-F-R-E-Y
THE COURT: Like Geoffrey yes? Was it with a J, or a G?
MR. RICHARDSON: With a J.
THE COURT: Yes all right. You will have no contact directly or indirectly with Jeffrey Walker, Pankaj Verma, Vipin Verma, or any members of their immediate families, that is to say the Vermas, Jeffrey Walker, as I have already mentioned, Brandi Palmer and Amanda Zelazny, or with anyone known to you to have a youth or criminal record, immediate family members excepted, and except for contact that is incidental to attending classes at school, gainful employment, or counseling sessions, or except with the written permission of your Probation Officer.
In addition, you will amenable to the routine and discipline set for your approved residence by the parent, guardian, or manager of that approved residence including complying with a curfew requiring you to be within your residence as set by the parent, guardian, or manager of your approved residence.
You will make reasonable effort to obtain and maintain suitable employment, or attend school on a fulltime basis and participate in your classes in good faith. You shall make good faith efforts to complete all of your assignments on time and in a good and workmanlike manner. You will show your report cards issued after the date of this order to your probation officer to allow your probation officer to confirm your compliance with the terms of this order.
You will take counseling as you may be directed to take it by your probation officer to deal with anger management, psychological problems, or any other personal issues identified by your probation officer including racial prejudice issues. If you are directed to take counseling you shall engage in it in good faith, and you will sign information authorization releases, if directed to do so by your probation officer, to allow your enrollment or participation in counseling programmes to be monitored by your probation officer.
You will abstain absolutely from the use, possession or consumption of alcohol or non-medically prescribed drugs, and you shall only possess or consume medically prescribed drugs as prescribed.
You will not possess any weapon as defined by the Criminal Code of Canada, nor any ammunition, prohibited ammunition, prohibited device or explosive substance.
Those are the terms of your probation. It is a criminal offence to willfully disobey those terms. You have now amassed a criminal record that contains more than three entries, including at least one indictable offence. What that means in law is that any breach of the probation order I have made, whether it is violent or non-violent, can result in your being incarcerated. So, just understand that once you conclude your sentence and you are on probation for the next 18 months, any breach of this order that you are convicted of, can result in your incarceration.
Reasons for Sentence
S.L. will be 17 years of age shortly. He was born on […] 1995. These are my oral Reasons for Sentence with respect to the prosecution of S.L., a young person.
Offences and Guilty Pleas
On December the 22nd, 2011, Mr. L. pleaded guilty on his trial date to one count of break and enter into a dwelling house and committing assault, and one count of failing to comply with an undertaking given to affect his release to a responsible person, his mother. He failed to comply with an alcohol abstention term. These offences occurred on April the 30th, 2011. In addition to these two counts, several other offences were read in as aggravating features, but they were withdrawn by the prior agreement with counsel.
The facts on these offences were outlined at page four of the transcript of the guilty pleas entered on that date. The salient facts with respect to them can be found at page four of that guilty plea, dated from December 22nd, at about line 15 through to page five, at about line 31.
Because, in my view, these Reasons for Sentence ought to be self-contained, I am going to read those facts into the record. Mr. L. was unemployed, not going to school, and residing with his mother on a […] address in the city of Niagara Falls. He had matters before the court, which were property crimes in essence, that he has since dealt with, but he was on an undertaking with a responsible person in relation to those matters, which was ordered on the 9th day of February 2011. The conditions included conditions to keep the peace and be of good behavior - that means obey the law, of course; be in his residence except for the purposes of going directly to and from school and abstaining from the use or possession of alcohol.
On the 30th of April 2011 at 12:00 in the morning the accused attended a basement apartment at […] Street in Niagara Falls. He was permitted to enter the apartment by the tenant there, a Brandi Palmer. Ms. Palmer told the accused to behave while in her residence. The accused and another woman, Liberty Young, consumed an undisclosed amount of alcohol and began to call Miss Palmer names. Consequently, she asked them to leave. Both the accused and Ms. Young refused to leave the residence. Ms. Palmer asked her friend, Amanda Zelazny, to assist. At 12:45 a.m., when the accused was instructed to leave, he actually left the apartment with Ms. Young, and entry to the front door to the apartment was locked against him. Once outside, he began to kick the door several times and was successful in breaching the door due to the force that he exerted. He then entered the apartment, became upset, grabbed Ms. Zelazny by the arms, and pushed her into a storage room. He also, once inside the apartment, damaged the heating ducts at the apartment by punching them with a closed fist; punching holes through the walls. He also damaged dining room chairs and light fixtures and he caused about $1000 in damage, at least by way of police estimate. On the occasion, he was on an undertaking to a responsible person and he was in breach of at least three conditions, namely he was not keeping the peace and being of good behavior; he was consuming alcohol in contravention of the undertaking, and he was not obeying his curfew and being with his responsible person at the time. Those were the essential facts that were read in and admitted, including the aggravating features pursuant to under The Criminal Code s.725, and under the Common Law case called R. v. Garcia and Silva.
Having pleaded guilty by indictment to the break, enter and committing assault and having pleaded guilty summarily to one count of failing to comply with his undertaking, the other breaches that were identified and the mischief count, were withdrawn.
Mr. L. appeared before me again on January 11th, 2012. At that time, he pleaded guilty by indictment to two counts of aggravated assault, and on the consent of the defence and without a further hearing or submissions being made, those two offences were designated by me to be "serious violent offences". In addition, at the same time, Mr. L., pleaded guilty summarily to one count of failing to comply with a disposition made against him on June the 17th, 2011 by his failure to keep the peace and be of good behaviour, as a result of having committed the two counts of aggravated assault. And finally, he also pleaded guilty summarily to one count of failing to comply with his undertaking to his responsible person, his mother, namely observing the curfew from 10:00 p.m. to 6:00 a.m. that was still in effect.
All of these four offences occurred on August the 1st, 2011. The facts admitted with respect to these offences were as follows, and I am reading from page five of that transcript through to page eight, line five, beginning at page five, about line 23. On April the 20th, 2011, Mr. L. was released on an undertaking by Justice of the Peace Cowan. One of the conditions that he was under was to obey a curfew, and be in his residence each day from 10:00 p.m. to 6:00 a.m. In addition, on June the 17th, 2011 he entered into a two-year probationary order and he was ordered for a period of two years to obey the law, that is to keep the peace and be of good behaviour. Those orders were in effect on Sunday, July the 31st, 2011 when he met up with one Jeffrey Walker, who was an adult, slightly older than Mr. L., apparently now about 18 or perhaps 19, and a female friend, and they went to the Clifton Hill area of Niagara Falls. On Monday, August the 1st, 2011 at about midnight the three began walking along Victoria Avenue, and Mr. Walker, his older adult male friend, approached several persons of various ethnic origins and attempted to start fights with them. The female reportedly intervened to attempt to stop Mr. Walker from fighting with passersby. At about 12:26 in the morning, the Verma family exited the Subway restaurant located on Victoria Avenue in Niagara Falls. That family consisted of two senior citizens, aged 80 and 74, three females, and four children ranging in age from two to eight. In addition two other adult males were present as I have been advised, Mr. Vipin Verma, and Mr. Pankaj Verma. Mr. Walker approached one of the Vermas and began to shout at him. As the Verma family attempted to depart the area, Mr. Walker and Mr. L. confronted Vipin Verma and Pankaj Verma. Mr. Walker struck Pankaj Verma in the face with a closed fist. The accused then joined in and punched Vipin Verma in the face two or three times with a closed fist. He also kicked Vipin Verma in the face. Both the accused and Mr. Walker were observed assaulting each of the victims.
The altercation moved from Victoria Avenue into an alleyway and passersby and bystanders assisted in holding on to Mr. L. for the police. Mr. Walker fled on foot. The police attended the scene, conducted an investigation and later Walker was also arrested.
Pankaj Verma, who was in his forties, I am told, suffered cuts to the inner portion of his lips, a loose tooth, jaw pain, red marks in the area of his chest, back scrapes and scrapes on his right knee. He also suffered a broken nose and a broken index finger. The nose required surgery, and the left-hand ring finger also required surgery, as a result of the tendons from that finger being torn away from the bone.
Mr. Verma is a computer technician, and he is attending physiotherapy, and on the occasion of the plea of guilty in January, he was in jeopardy of losing his job. I have now been advised that, in fact, he has lost his employment because he can no longer type.
Mr. Vipin Verma suffered an abrasion to his right elbow, an injury to his left eye. That left eye injury turned out to be a fracture of the orbital bone of his left eye. There was concern he would lose his eye, that has not happened. He sustained numbness to his teeth, and blurred vision, which he continues to suffer from and I will speak to that in greater detail later in these Reasons.
On the occasion of these assaults Mr. L. was on probation and under a curfew, and he was in violation of both of those orders, along with the statutory term that he keep the peace and be of good behaviour. All right, those are the facts in support of the plea is entered before me on January the 11th.
Presentence and Psychological Reports
A presentence report and a section 34 psychological assessment report were ordered and prepared, and they have been filed as exhibits in this proceeding. These matters were before me early in March, I believe it was the 5th of March. But, the sentencing did not proceed on that occasion because of comments made by Mr. L. in the presentence report to the presentence reporter, and to staff of the psychologist. Those comments demonstrated that Mr. L. was resiling from his pleas of guilty with respect to the aggravated assault counts. Additionally he, but this is of lesser concern, he downplayed his culpability in the break and enter and assault count that he pled to in December, and insofar as that resiling is concerned, reference can be had at page five of the presentence report prepared for this hearing, which is Exhibit number three, and as well, reference can be had to page four of the psychological assessment, which is Exhibit number four with respect to the comments that concern me.
Because of those comments, the matters were adjourned and I ordered a transcript of the guilty pleas and the facts that were read in and admitted to, to determine if there was a need for a trial of an issue on the question of the propriety of Mr. L.'s guilty pleas, or whether there was going to be an application to strike his pleas of guilty with respect to the aggravated assault counts.
On Friday last, Mr. Brooks confirmed that he had reviewed those facts and admissions with his client, Mr. L., and Mr. Brooks explained that Mr. L. maintains his pleas of guilty and admits to all of the facts that he admitted to on the pleas being entered into with the previously admitted facts. Mr. Brooks explained that Mr. L. said the things he said that concerned me because he did not want to look like "a fool", or "a goof" to the respective authors of those reports. Despite having said those comments outside the courtroom, Mr. L., through his counsel, confirmed his pleas of guilty and admissions so that no trial of an issue of his guilty plea and no application to strike the pleas is necessitated and as a result submissions are made on last Friday, March the 30th, and I am now in a position to impose the sentences that I have arrived at. Before going further, I propose to clarify the chronology of the events that bring Mr. L. before me today.
Chronology of Events
Mr. L. was facing a series of property offences that resulted in him being placed on probation for two years on June the 17th, 2011 by Madam Justice Vyse. While the full facts of those offences was not disclosed to me, they included lighting a number of cars on fire, that is, they were arson offences, and I infer they also included of Mr. L. being in possession of a stolen vehicle.
The record before me does not disclose the offence date, but Mr. L. was on a form of release for those matters as of February the 9th, 2011. While on that undertaking release, imposed on February the 9th, 2011, he committed the crimes to which he has pleaded guilty dated from April the 30th, 2011, namely the break, enter and assault, the act of mischief, and the several breaches of his undertaking release. He was re-released apparently and came before Madam Justice Vyse on June the 17th, and received the disposition of two years probation, while continuing to be bound by his undertaking release that was imposed for the April 30th matters.
Despite being on probation from Madam Justice Vyse's order of June the 17th, 2011, and despite being on an undertaking release, to his mother as a responsible person, Mr. L. committed the offences of aggravated assault, breach of disposition, failure to comply with his undertaking, all on August the 1st, 2011. He has remained in custody since that date. That is, he has been detained at the Peninsula Youth Centre, a secure custody facility for eight months and two days, since August the 1st, 2011. In addition, he was detained after committing the break and enter, and assault count on April the 30th, until May the 12th, 2011, or a further 13 days. He has, therefore, eight and one half months to be credited against any appropriate sentence to be imposed today.
Sentencing Submissions
There is very little difference between the gross parameters of the submissions made by the Crown and the defence with respect to the counts of aggravated assault. The Crown submits that given the aggravating features of these crimes that an appropriate sentence, which will be a meaningful consequence to this young person, is a sentence of 18 months in total for both assaults. Mr. Brooks disagrees but not severely. In his submission a sentence in the range of 15 months to 18 months is appropriate. The major point of contention between them is the attribution of presentence custody. The Crown's submission is that the eight months spent by Mr. L. in secure custody should be attributed to him on a one day for one day basis. Mr. Brooks submits there is no good or sufficient reason to depart from crediting that period to him at a ratio of one and a half days of custody credited against everyday actually served. The difference between them comes to this, the Crown submits that against the 18 months he asks me to impose, I also credit Mr. L. with only eight months of custody and impose a further 10 month sentence to be served two thirds in detention and one third under community supervision in the usual course. Mr. Richardson also submits that Mr. L. should not be transferred to an open custody setting immediately, but rather he suggests that some allocation of the custodial portion to be continue to be served in a closed custody facility, and then some lesser portion to be served in an open custody setting before the advent of community supervision.
Mr. Brooks' submission is that the eight months of closed custody ought to be treated as 12 months, leaving only a further three months to be served. He suggests that Mr. L. is close to achieving the highest level of freedom at his current place of detention, and he ought to be left there, that is in closed custody, for the remaining two months of the three and then released for one month of community supervision. If I find that the 18 months is the correct sentence, then his submission remains the same, namely four months and two months respectively still at Peninsula Youth Centre.
Both counsel anticipate a lengthy period of probation to follow for the break, enter, and assault count.
Counsel are agreed that section 42(14) and (15) of The Youth Criminal Justice Act dictate that the longest period that Mr. L. can be under sentence for these offences, including any period of probation, is three years in total. That is to say, if more than one youth sentence is imposed with respect to different offences, the continuous combined duration of those youth sentences cannot exceed three years in Mr. L.'s current circumstances.
Consequences of the Assault
Turning for a moment to the consequences of the assault, while no formal victim impact statements were filed, Mr. Richardson provided me with an update on the conditions of Mr. Pankaj Verma, and Mr. Vipin Verma. Mr. Pankaj Verma has lost his employment as a computer technician, as he can no longer type due to the damage to his tendons in his hand. Mr. Vipin Verma's double vision persists, and he feels it is getting worse. He advised Mr. Richardson that he is suffering from a condition called ocular cardiac reflex, which is rarely encountered. It, he advises, somehow causes a slowing of his heart rate, and he has been told that that will provide a cascade of deleterious health effects. He continues to be treated by both cardiac and plastic surgeons.
While I do not doubt the bona fides of the reports conveyed by Mr. Richardson, it is difficult to weigh these continuing effects without appropriate and admissible medical reports. Nonetheless, the admitted facts and injuries are sufficient for me to infer ongoing psychological trauma from an unprovoked and racially motivated assault. Further, the assaults were clearly aggravated assaults. So while I cannot characterize these results as catastrophic by any means, they are easily and properly characterized as severe and life altering.
Background and Circumstances
I turn next to a brief discussion of Mr. L.'s background and circumstances. I will then turn to the presentence and psychological reports, and I will conclude by crafting a sentence that I deem appropriate in all of these circumstances.
Mr. L. does not come from a deprived background. Nonetheless, his family and he suffered from life shattering events just prior to the inception of his criminal behavior. That history and process was described in the presentence report prepared for Madam Justice Vyse, which has been filed as Exhibit two in these proceedings. At page three of that report under the heading, Family and Personal History, all of the following information is contained. Mr. L.'s parents were married for 17 years – I am paraphrasing slightly - and separated in September of 2010. Mr. L. has an older brother from a prior relationship. That older brother was nine when he began to be parented by Mr. L.'s mother. Mr. L.'s father owned and operated a tattoo parlour in Niagara Falls, and his mother had her esthetics license, but she is currently on disability. The family was very close and things went well for the family up until about two years prior to the date of this report, June of 2011.
In June of 2009, everything changed. Mr. L., the father of the youth before me, attempted suicide. His mother found her husband hanging from the rafters and had to cut him down in a very disturbing fashion. She called 911, but Mr. L.'s father was comatose for about nine weeks at the intensive care unit in Hamilton. He stayed there for 12 weeks. Ms. L. went and stayed at the Ronald McDonald House close to the hospital in Hamilton.
The father of this young man before me was transferred to the Greater Niagara General Hospital for four months of physiotherapy, rehabilitation and psychiatric evaluation, and then treated for some months as an outpatient. He required a tracheotomy and a wheelchair, and he has suffered moderate brain damage due to his anoxic condition for eight minutes.
As a result of all of this, Mr. L., the youth before me, arranged to be moved in with a girlfriend of his mother. But, he didn't stay there, and he partied at other people's homes for a period of time, or lived on the streets apparently.
So, as a result of these events Mr. L.'s behaviour changed completely. He spent his 14th and 15th birthdays in two different intensive care units. He was devastated by the events that have happened to his parents, who have divorced. He has lived with both of them since these events.
Following Mr. L.'s released from detention, the period is not identified in this paragraph, but from the period of detention he suffered, he consumed some illicit drugs, and he had a very severe reaction. He had breathing difficulties and was transferred to the hospital by ambulance, and then transferred to McMaster Hospital. As a result of his drug use, he suffered a heart attack, and damaged his heart muscle. One of his arteries was found to be 98 percent clogged. He was in a very serious condition, and his mother reports that Mr. L., the young man before me, almost died as a result of his ingestion of these drugs. He was hallucinating. He was aggressive. He was volatile, having smashed his bedroom window and the doctor indicated that he would be agitated for a period of time.
Mr. L. has not succeeded scholastically since the events just described, and he was not terribly successful, at least by way of his behaviour earlier in his public school career. But, his failure to do so is not the result of any lack of intellectual ability. Exhibit four, the psychological assessment, identifies him as being in the normal and average range of intelligence. He reads as well as any peer in grade 12, at a 16 year old level. His spelling skills are only at the grade eight level. His math or arithmetic skills are substantially delayed. He scores as if he were a grade four student. But, that appears not to be because of any cognitive inability, but rather due to a lack of any appropriate teaching I infer, and practice of the crafts and skills of arithmetic, at least according to the other components of his I.Q. testing that I have read.
Psychological Assessment
Insofar as his general assessment is concerned, Dr. Wong, at page eight in the fourth full paragraph, describes Mr. L. as functioning in the following fashion:
An examination of general personality function revealed that S. is prone to unruly and dramatizing behaviours. The youth that presents this profile tends to act out in antisocial ways and does not adhere to societal standards of behaviour. They display rebellious attitude that may lead to conflict with parents, school officials, and legal authorities. In addition, they may present as talkative, charming, and emotionally expressive. They look for interesting experiences and new forms of excitement. They are easily bored with routine and have brief relationships with others.
In my view, despite his words of contrition uttered just before I began these Reasons this morning, I am of the view that S.L. lacks insight into his own behaviour, that he discounts or justifies his criminal actions by failing to accept responsibility for his choices, or by projecting blame on others for the acts that he engages in.
I note that when he was interviewed for the report prepared for his June sentencing appearance, he said at the fifth page, fifth paragraph of that report, that he would follow whatever decision the court would make, including following a curfew, and of course, he did not.
Under the heading Response to Court Sanctions, in Exhibit three, S.'s performance while at the Peninsula Youth Centre is reviewed. The reporter writes:
His performance at the Peninsula Youth Centre has been sporadic. He has been unable to achieve the highest level of the program of a four level program – level one being the lowest, level four being the highest, and he fluctuates between one and three. The case coordinator for him at P.Y.C. advises that he requires frequent redirection around language and inappropriate topics of conversation, and attitude in general. He displays difficultly taking responsibility for his behaviour and is quick to blame others, primarily staff. To his credit, he can be very personable and funny. He tends to get caught up in negative behaviour and still frequently requires redirection around horseplay. He has completed a number of programs but does not seem to be using the skills that he has learned in the sessions.
When I invited him to speak to the sentence I must impose, on Friday last, Mr. L. said two things. First he characterized himself as being a nice guy. That's what he said, "I'm a nice guy", and second he noted he had spent, he described it as being one sixteenth of his life in custody – it is not quite that, but a substantial period of his time in secure custody for a 16 year old.
In my view, his comments confirm first, a lack of appreciation of his behaviour, while the second demonstrates that organically he has the nature, or innate intelligence to be successful if he learns to control his behaviour.
Pre-Sentence Custody Credit
Returning to the sentence to be imposed, as previously noted, the substantial issue joined is the appropriate attribution of presentence custody. Should it be an eight month credit, or should it be a 12 month credit?
The Queen v. T.B., [2006] O.J. 584 (O.C.A.) commencing at paragraph 33 but particularly at paragraph 44 and following, speaks to the issue of the attribution of presentence credit.
For all of the following reasons, I find it is appropriate to give Mr. L. one for one credit for the eight and a half months that he has spent in custody. The reasons include the following. First, to give him one and a half to one credit would be to credit him with community supervision that he has never been subjected to, that he has never actually served, and this is especially significant as a factor in my view given the behaviours that he committed, including the assaultive offences that he committed in April, when he committed the break, enter and assault when he was on an undertaking release, which he disobeyed. In addition, the serious offences committed on August 1st, 2011 were committed when he was on a probationary disposition, that is to say, a community supervision prohibition and still on an undertaking, which he also disobeyed. I am of the view that these circumstances make it inappropriate to credit him with four months of community supervision that he has not actually undergone and complied with.
I also take into account the truncated penalty maximums that are provided by the Youth Criminal Justice Act. These were crimes of aggravated assault. They were very serious offences. Leaving aside the motivating feature, the physical results of these crimes were, as I have said, life altering for the two victims of these offences. Additionally, these were racially motivated crimes. The Vermas were picked on because they were persons of colour, not because of anything else they had done. They were strangers walking out of a Subway with the family, and they were assaulted by Mr. Jeffrey Walker and S.L..
It is not my intention to double count the fact of Mr. L.'s breach of probation and the fact that he was in breach of a judicial interim release order. But, those are factors that I need to take into account in addition to what I have already said. The fact that he was on these orders exacerbates the severity of the crimes he committed on August the 1st.
Another way of looking at that point is that what effectively I am observing is that I find one to one credit being the right amount, because I have considered Mr. L.'s prospects of rehabilitation and determined, both because of what he did and how he behaved since August the 1st as well, that is to say, his failure to achieve even the highest range over eight months at P.Y.C., and taking that into account as well in my view, one to one credit is the appropriate disposition.
Sentencing Decision
In the result, I find that the correct sentence for S.L. on the two counts of aggravated assault to be 18 months of detention concurrent on both, against which period of detention I credit him with eight months and 15 days of time served on a one to one basis.
I therefore sentence him concurrently on the two counts of aggravated assault to nine months and 15 days of detention. Six months and ten days of that period shall be served in open custody, and the final three months and five days shall be served under community supervision.
On the failure to comply with disposition count, and on the failure to comply with undertaking counts, he shall be credited in the first case, on the failure to comply with disposition with a 60 day concurrent presentence custody credit, on a one for one basis, and a further 30 day concurrent one for one credit on a failure to comply undertaking, and all of those credits are of course concurrent to the eight months and 15 days credit already noted.
Finally, on the two counts from April the 30th, 2011, that is the period of probation on the terms previously noted, shall be for 18 months, making the total sentence for both sets of offences, the three year maximum that is allowed under the Youth Criminal Justice Act. The period of probation shall commence upon the expiry of the further period of detention that I have imposed on the two counts of aggravated assault.
I finally note that despite the Crown's request for a closed custody period, all of the further detention shall be served in an open custody facility, subject of course to any further order or application to a court, and subject to any direction or authority to vary that order by the Provincial Director, if so advised. I arrive at that position that open custody is the appropriate format for the further incarceration because Mr. L. needs to develop the ability to control his behaviour under lessened supervision, and I see open custody as the first initial step in that process.
Conclusion
All right counsel are there any other matters that I have not yet dealt with and I need to deal with?
MR. BROOKS: Nothing for the defence.
MR. RICHARDSON: No, thank Your Honour.
THE COURT: All right, that is the sentence young man, good luck to you.
S.L.: All right, thank you.
MR. BROOKS: Thank Your Honour.
Certificate of Transcript
FORM 2
CERTIFICATE OF TRANSCRIPT (SUBSECTION 5 (2))
I, Sue Freeman, certify that this document is a true and accurate transcript of the recording of R. v. L. in the Ontario Court of Justice held at 59 Church Street, St. Catharines, Ontario taken from Recording Number 2111_CRT1_20120402_100255, which has been certified in Form 1.
(Date) (Signature of authorized person(s))
COPIES OF THIS TRANSCRIPT BEARING PHOTOSTATIC OR FACSIMILE SIGNATURES ARE NOT ORIGINALS AND HAVE NOT BEEN PAID FOR. UNLESS TRANSCRIPTS BEAR THE ORIGINAL SIGNATURE, THEY ARE NOT VALID AND ACCORDINGLY ARE IN DIRECT VIOLATION OF ONTARIO REGULATION 587/97, COURTS OF JUSTICE ACT, JANUARY 1, 1990.