WARNING

The court hearing this matter directs that the following notice should be attached to the file:

This is a case under the Youth Criminal Justice Act and is subject to subsections 110(1) and 111(1) and section 129 of the Act. These provisions read as follows:

110. Identity of offender not to be published. —(1) Subject to this section, no person shall publish the name of a young person, or any other information related to a young person, if it would identify the young person as a young person dealt with under this Act.

111. Identity of victim or witness not to be published. — (1) Subject to this section, no person shall publish the name of a child or young person, or any other information related to a child or a young person, if it would identify the child or young person as having been a victim of, or as having appeared as a witness in connection with, an offence committed or alleged to have been committed by a young person.

129. No subsequent disclosure. — No person who is given access to a record or to whom information is disclosed under this Act shall disclose that information to any person unless the disclosure is authorized under this Act.

Subsection 138(1) of the Youth Criminal Justice Act, which deals with the consequences of failure to comply with these provisions, states as follows:

138. Offences. — (1) Every person who contravenes subsection 110(1) (identity of offender not to be published), 111(1) (identity of victim or witness not to be published) . . . or section 129 (no subsequent disclosure) . . .

(a) is guilty of an indictable offence and liable to imprisonment for a term not exceeding two years; or

(b) is guilty of an offence punishable on summary conviction.

Court Information

Court File No.: Toronto

Date: 2012-12-03

Ontario Court of Justice

sitting under the provisions of the Youth Criminal Justice Act, S.C. 2002, c. 1

Between:

Her Majesty the Queen

— and —

G.-E.(A.), a young person

Before: Justice E. B. Murray

Sentencing submissions made in writing

Decision on sentence released on: December 3, 2012

Counsel:

• Ms. Yeshi Laine for the Crown
• Ms. Carol Cameron, counsel for the accused G.-E.(A.)

DECISION

MURRAY, E. B. J.:

Convictions

[1] On July 31, 2012 I found the accused guilty of the following offences, all of which relate to one incident which occurred on July 26, 2010:

• Theft over $5,000 ($6,400 and recording equipment valued at $10,000), using an imitation firearm and a knife;
• Forcible confinement of Savan Beda and John Thomas Murdoch;
• Use of imitation firearm while committing a robbery;
• Two counts of failure to comply with a recognizance (which specified house arrest, and no weapons).

[2] I have received and reviewed a pre-sentence report, and the written submissions of counsel, as well as the caselaw they provided, and a statement from the accused.

[3] The Crown asks that I find that the robbery and forcible confinement committed by the accused is a "serious violent offence" (SVO) under s. 42(9) of the Act, and that I impose a sentence of 24 months custody and supervision (16 months custody followed by 8 months of community supervision), followed by three years probation. The defence submits that although the facts would justify an SVO finding, that the court should exercise its discretion and decline to make the finding. The defence further submits that the appropriate sentence, the sentence which meets the objectives of the Act, is a lengthy period of probation, or a sentence of deferred custody followed by a period of probation.

[4] In determining a sentence for the accused, I am required to consider (1) whether custody is an available sentence; (2) if the answer is yes, whether the offence merits the designation of a "serious violent offence"; and (3) the appropriate sentence, considering the purpose and principles of sentencing set out in the Act.

[5] The accused is being sentenced at a time more than two years after the date of his offences. This case was delayed during the trial stage, and delayed after the trial when dates for submissions on sentence were scheduled and had to be vacated and rescheduled. Much of the delay was attributable to the defence. This is regrettable. As noted by the Ontario Court of Appeal, it is "a well-established fact that the ability of a young person to appreciate the connection between behaviour and its consequences is less developed than an adult's", and that if treatment is required, it is best begun with as little delay as possible.

The Offences

[6] The incident on July 26, 2010 was a home invasion. The Ontario Court of Appeal in R. v. J.S. describes a "home invasion" as follows:

"….the main features of home invasion include breaking and entering a dwelling place for purposes of committing a theft or robbery, knowing that (or being reckless as to whether) the home is being occupied, and using or threatening to use violence. The presence of weapons is often a factor, as is the confinement of the occupants of the home in some fashion."

[7] On the day in question, the accused and three others entered Savan Beda's apartment in Toronto; they were allowed entry by Scott Milot, an accomplice who by a ruse had already gained entry to the apartment. All except Mr. Milot wore bandanas over their faces, and socks on their hands. The accused and the other intruders pushed Mr. Beda and John Murdoch, Mr. Beda's friend who was staying at his apartment, into the bathroom, where they were ordered to get into the bathtub.

[8] For over 30 minutes Mr. Beda and Mr. Murdoch were held in the bathtub at gunpoint, while the intruders ransacked the apartment and removed recording equipment valued in excess of $10,000 and Mr. Beda's savings of $6,400. Mr. Beda was also at one point beaten to force him to reveal the location of his savings and the name of an individual in the building who had a quantity of marijuana.

[9] The accused was the individual who held the gun for most of the period. He also participated in the beating of Mr. Beda and the removal of his property.

[10] As I noted in the reasons for my decision on July 31, 2012, "Both men thought the gun was real; they could see that it was cocked, and that there was a bullet in the chamber." Mr. Murdoch testified that the ordeal terrified him; he was afraid that even if the accused did not purposely fire at them, that his cavalier handling of the gun could lead to it being fired inadvertently.

[11] After the apartment was cleaned out, the accused and some of the other intruders tied the hands and feet of Mr. Beda and Mr. Murdoch and left. Eventually the victims freed themselves and Mr. Beda called police.

Is Custody Available?

[12] One purpose of the Act is to discourage a previous over-reliance on custody when dealing with young persons. Section 39 of the Act only allows the court to impose a custodial sentence in four circumstances.

Committal to custody

39. (1) A youth justice court shall not commit a young person to custody under section 42 (youth sentences) unless

• (a) the young person has committed a violent offence;
• (b) the young person has failed to comply with non-custodial sentences;
• (c) the young person has committed an indictable offence for which an adult would be liable to imprisonment for a term of more than two years and has a history that indicates a pattern of findings of guilt under this Act or the Young Offenders Act, chapter Y-1 of the Revised Statutes of Canada, 1985; or
• (d) in exceptional cases where the young person has committed an indictable offence, the aggravating circumstances of the offence are such that the imposition of a non-custodial sentence would be inconsistent with the purpose and principles set out in section 38.

[13] In the accused's case, a custodial sentence is available by reason of at least two of these windows to custody.

[14] The defence concedes that the accused committed a "violent offence". As defined by the Supreme Court of Canada in R. v. C.D., 2005 SCC 78, that is "an offence in the commission of which a young person causes, attempts to cause or threatens to cause bodily harm". The Court held that the harm may be physical or psychological. "Bodily harm" as defined by the Criminal Code means "any hurt or injury to a person that interferes with the health or comfort of the person and that is more than merely transitory or trifling in nature".

[15] The accused inflicted actual physical harm on Mr. Beda, by joining with the others in punching him in the torso. He also attempted to cause psychological harm to both victims. It is clear that his purpose in holding a gun on the victims for a prolonged period of time was to intimidate them, to threaten violence to prevent them from interfering with the robbery. Thus, the accused committed a crime involving both physical and psychological violence.

[16] In addition, the accused's crimes qualify him for a custodial sentence under s. 39(1)(c). He was found guilty of robbery and of forcible confinement, offences for adults which provide maximum sentences of life imprisonment and ten years.

Serious Violent Offence?

[17] Should the accused's offences be characterized as a "serious violent offence" (SVO) as defined in s. 2(1) of the YCJA: "an offence in the commission of which a young person causes or attempts to cause serious bodily harm"? The Ontario Court of Appeal has held that "serious bodily harm" includes "any hurt or injury, whether physical or psychological, that interferes in a substantial way with the physical or psychological integrity, health or well-being of the complainant".

[18] An SVO designation has serious consequences. The consequence of such a designation for the accused would be the removal of deferred custody as a possible sentence. The onus is on the Crown to prove the facts which might support this designation beyond a reasonable doubt.

[19] The Crown offers a victim impact statement from Mr. Beda in which he acknowledges that he suffered no significant physical injuries, and which highlights the financial damage he suffered—loss of the equipment and audio recordings which represent ten years' work making recordings of hip hop music. The statement does not speak to any psychological impact upon him of the offences, perhaps because the form provided to victims by the Crown does not have a question eliciting that information, as it does for physical injury and financial impact.

[20] However, the evidence at trial from both victims and particularly from Mr. Murdoch made clear that they were terrified while being held at gunpoint for 30 minutes by a group of intruders who were angry and volatile. Mr. Murdoch was acutely conscious of the danger presented by the accused's sloppy handling of the gun, which both men believed to be real. The beating of Mr. Beda demonstrated that the intruders were willing to employ actual violence to achieve their ends.

[21] In my view, it is significant that the purpose of the accused's wielding of the gun was to create fear in the victims' minds to gain their compliance, fear that they would be shot if they resisted. As Justice Frederick Forsyth observed in a similar case, there is no other logical conclusion that could be drawn by victims in that situation. Justice Forsyth made an SVO finding in that case. There are other cases in which courts have found that the circumstances of the offence itself were sufficient to lead to an inference that the perpetrator intended the victim to feel fear and that the victim in fact did so.

[22] The defence concedes that the facts here meet the threshold for an SVO designation, but asks that I decline to make the designation precisely because the consequences of that designation remove from consideration a sentence of deferred custody. In support of this argument, the Defence refers to a decision of the Ontario Court of Appeal, R. v. K.C., 2011 ONCA 257. In my view, the gravity of the offences and the impact of these offences on the victims require that in order to hold the accused accountable, that I make the SVO designation, and I do so. I add that, even if an SVO designation was not requested, I would find that the principles and purpose of the Act require that an actual custodial sentence be imposed upon the accused, for reasons that I discuss further below.

The Offender

[23] The accused was 17 years old at the time of these offences; he is now 19 years old. He lives with his mother Ms. G. and 17-year-old sister in Kitchener, Ontario. At the time of these offences, he lived in downtown Toronto in the same building as Mr. Beda. Ms. G. moved the family from Toronto to Kitchener shortly after her son was arrested on these charges. She had planned this move some months prior, partly in order to remove him from what she viewed as bad influences in their neighbourhood. Ms. G. is the sole financial support of the family, and her hours of work as a restaurant manager in Toronto have made it difficult for her to supervise her son. She and her son report they have a "good" relationship, although they do not communicate well about many issues.

[24] The children's father, Mr. E., has been an inconsistent presence in their lives. He advised the author of the pre-sentence report (PSR) that he is "estranged" from the accused. The accused says that he has a "difficult" relationship with his father.

[25] The accused had a youth record at the time of these offences, and has accumulated a further record since that date. In May 2008 when he was 15 years old, he was convicted of assault, failure to attend court, and failure to comply with a recognizance. He was sentenced to 12 months probation.

[26] On August 18, 2010, the accused was convicted and sentenced on offences committed prior to the date of the offences in this case. He was found guilty of charges of trafficking in a controlled substance (cocaine), possession of a controlled substance (x2), possession of property obtained by crime, and failure to comply with a recognizance. He was sentenced to 18 months probation, with 51 days in pre-sentence custody noted. The presiding judge ordered a section 34 report as well as a PSR; counsel provided and I have reviewed copies of both those reports. The section 34 report noted that the accused had no mental illness, and that he had borderline to average cognitive abilities and was "significantly behind academically".

[27] On April 15, 2012 the accused was found guilty by an adult court in Kitchener of failure to comply with a recognizance, and sentenced to 5 days in jail in addition to 2 days of pre-sentence custody.

[28] On March 3, 2012 he was found guilty in an adult court of assault, uttering threats of bodily harm, breach of a recognizance, and possession of controlled substances. He was sentenced to 18 months probation, with 75 days of pre-sentence custody being noted. The victim was his former girlfriend, the mother of his infant son.

[29] The accused stated in his letter to me that he had been blessed by having a son, and that he wanted to "move on" with his life and "make a family". However, according to the PSR, the accused apparently has little contact with the child.

[30] The accused's recognizance on the charges for which I am sentencing him have required him to live with his mother, with many exceptions which include attending at school, work, or counselling or when in the company of his mother. He is not employed, and not in school. According to the PSR, he is not participating in a program of counselling. (Counsel submits that he is engaged in "on-site counselling" at the probation office. This may be a recent development.) The accused advised the author of the PSR that he spends most of his time at home "on his own".

[31] Ms. G. feels that her son has changed. He now sometimes helps around the house, and does not associate with people whom she finds objectionable. They no longer have frequent arguments. She believes that the birth of his son has had a positive effect on him.

[32] The accused says that he has cut ties with the associates from his drug-dealing days, and that he intends to stay away from them. He plans to change his lifestyle, get a job, and try to be a father to his son.

[33] The accused reports that he has used marijuana regularly, but has abstained for the past 6 months, and that he occasionally drinks alcohol, but not to excess.

[34] The accused has only completed Grade 8. When he did attend secondary school in Toronto, he was frequently absent. In Kitchener his probation officer referred him to an adult learning centre; he did not attend because there was "stuff going on in the school that I didn't want to get involved in"—apparently criminal activity. His probation officer also referred him to Lutherwood Employment Services, but the accused did not follow through. He was referred to a one-on-one counsellor, Shanna Braden, and they met several times but he did not want to participate in programming. He was referred to an agency for individual counselling; he failed to attend appointments there until very recently.

[35] The accused's probation officer assessed him as a high risk to re-offend, given his record, negative associations, lack of pro-social activities, extensive leisure time, "pro-criminal thinking" and problems managing stress and anger.

[36] Despite the negatives noted, the author of the PSR states: "It is very clear from the sources contacted for this report that the subject has strengths and the potential to succeed." Irene Marynowicz of Operation Springboard in Toronto had contact with the accused while he lived in Toronto (until August 2010) regarding current and previous charges. She was impressed with his intelligence and his commitment to change his criminal lifestyle. Shanna Braden, with whom he has had more recent contact, found him to be "quite open and mature, capable of more insight than most youth I work with".

[37] The author of the PSR made no recommendations, but offered suggestions about community programming available if the accused were to receive a community sentence. Those resources are similar to the resources recommended to him in the previous PSR, resources of which he failed to take advantage.

Analysis

[38] Section 38 of the Act set out below deals with the purpose and principles of sentencing.

Purpose

38. (1) The purpose of sentencing under section 42 (youth sentences) is to hold a young person accountable for an offence through the imposition of just sanctions that have meaningful consequences for the young person and that promote his or her rehabilitation and reintegration into society, thereby contributing to the long-term protection of the public.

Sentencing principles

(2) A youth justice court that imposes a youth sentence on a young person shall determine the sentence in accordance with the principles set out in section 3 and the following principles:

• (a) the sentence must not result in a punishment that is greater than the punishment that would be appropriate for an adult who has been convicted of the same offence committed in similar circumstances;
• (b) the sentence must be similar to the sentences imposed in the region on similar young persons found guilty of the same offence committed in similar circumstances;
• (c) the sentence must be proportionate to the seriousness of the offence and the degree of responsibility of the young person for that offence;
• (d) all available sanctions other than custody that are reasonable in the circumstances should be considered for all young persons, with particular attention to the circumstances of aboriginal young persons; and
• (e) subject to paragraph (c), the sentence must
  • (i) be the least restrictive sentence that is capable of achieving the purpose set out in subsection (1),
  • (ii) be the one that is most likely to rehabilitate the young person and reintegrate him or her into society, and
  • (iii) promote a sense of responsibility in the young person, and an acknowledgement of the harm done to victims and the community.

Factors to be considered

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

• (a) the degree of participation by the young person in the commission of the offence;
• (b) the harm done to victims and whether it was intentional or reasonably foreseeable;
• (c) any reparation made by the young person to the victim or the community;
• (d) the time spent in detention by the young person as a result of the offence;
• (e) the previous findings of guilt of the young person; and
• (f) any other aggravating and mitigating circumstances related to the young person or the offence that are relevant to the purpose and principles set out in this section.

[39] In addition to considering these principles, I am alert to s. 39(2) of the Act, which provides that even if a window to custody is open under s. 39(1), that I shall not impose a custodial sentence unless I have first considered alternatives and determined that those alternatives are not in accordance with the purpose and principles of the Act.

[40] In my view, the accused requires a custodial sentence for two reasons: to hold him accountable for his serious offences, and to promote his rehabilitation and reintegration into the community. A non-custodial sentence would not be sufficient to meet these objectives for this offender.

Seriousness of the offence

[41] The gravity of the offences is very high. The Ontario Court of Appeal addressed this issue in R. v. Wright:

13 Home invasion is a serious, and increasingly prevalent, crime in our society. For a discussion of its essential nature and the variety of circumstances "home invasion" can embrace, see R. v. S.(J.). The crime committed by Mr. Wright constitutes a home invasion because it was characterized by the invaders' forced entry into the victims' home for purposes of committing a theft or robbery, knowing that (or being reckless as to whether) the home was being occupied, and by the accompanying use or threatened use of violence with guns, together with the confinement of the occupants of the home.

14 As this court also noted in S.(J.), supra, at para. 34, home invasion offences are particularly troubling "because they represent a violation of the sanctity of the home and of the sense of security people feel when in their homes - highly cherished values in our society - and because they are frequently perpetrated against vulnerable individuals." They must therefore be dealt with sternly by the courts. This concern was eloquently captured by Trafford J. in R. v. Soares, [1996] O.J. No. 5488 (S.C.J.) at para. 286:

The sanctity of one's home is of fundamental importance in a free and democratic society. It is constitutionally recognized in our country. Everyone must not only be, but feel, secure in their residence. A society that tolerates significant criminal intrusions into the privacy of one's home is a society that forces its citizens to resort to self-help to protect themselves against such wrongs. Absent effective responses from the judiciary, the alternative is for citizens to arm themselves in anticipation of a need to defend themselves against such criminal enterprises. A society like that is not ours today, has not been ours in the past, and will not be ours in the future. The obligation of the Court is to give proper recognition to the sanctity of the home, to protect all citizens against such intrusions, and to thereby preserve the public's confidence in the administration of justice.

Degree of responsibility

[42] The accused's degree of responsibility in this incident was significant. He held the gun on the two victims for most of their ordeal, and joined the others in beating Mr. Beda. There is no evidence that he was coerced or pressured into participating in the crime. The evidence did not establish that any of the five involved in the robbery was the "leader".

Proportionality

[43] The issue of the proportionality of any sentence I might impose upon the accused vis a vis others who participated in these offences does not arise. An adult was charged with regards to these crimes, but acquitted after trial. No one other than that adult and the accused was charged.

[44] Adults convicted in other cases of the offences of which the accused has been found guilty face a "lengthy penitentiary term", in the range of 4-11 years depending on the circumstances of the case and of the offender.

[45] Young persons who are found guilty in other cases of similar offences almost invariably are given custodial sentences of significant length.

• In R. v. J.S., the Ontario Court of Appeal reduced the sentence of a young person who had served 3 months pre-sentence custody from 24 months custody and supervision to 15 months custody and supervision. In that case, the young person brandished a machete at the victims, while a co-accused pointed a gun. The Court of Appeal noted significant mitigating factors in that case to which the trial judge had given insufficient weight: the young person's youth at the time of the offence (15); his lack of any youth record; his supportive family; and his progress since the offence (he had completed his high school credits and obtained employment).

• In R. v. J.F., 2012 BCSC 780, Justice Powers of the B.C. Supreme Court sentenced a young person, 15 at the time of the offence, to 21 months custody and supervision, in light of 186 days in pre-sentence custody, followed by 12 months probation. The young person was not a principal in the offences, which involved 3 adult accused, but was an active participant. He had prior offences, none for crimes of violence. The offence involved a night-time entry into a home in which the residents were bound, beaten, and robbed.

• In R. v. O.B., 2008 ONCJ 744, Justice Mavin Wong sentenced two young persons who participated in a home invasion with an adult and two other males in which a family, including young children, was held at bay while the home was ransacked and property taken. A gun was pointed by one of the group at the family's teenaged son. None of the victims was assaulted. Justice Wong accepted that the robbery was "spontaneous". O.B., 18 at the time of the offence, held the gun for a period, but did not point it at anyone. He had no record, extremely limited cognitive abilities, and good family support. He had been admitted into the ISSP program, and agreed to work with the program, a significant factor for Justice Wong. The other accused, J.B., was 13 at the time of the offence, had a prior youth record as well as a history of long-standing difficulties at school, and problems with drug use. He however had "tremendous" support from his mother, had demonstrated a motivation to change, and had the support of a youth worker. Neither young person had a lengthy period of pre-sentence custody. Justice Wong sentenced both boys to 15 months custody and supervision, followed by 18 months probation.

• In R. v. L.K.S.-L., 2011 BCCA 2396, the British Columbia Court of Appeal upheld a sentence of 15 months custody and supervision followed by 12 months of intensive support and supervision for an offender who was 15 at the time of his offence. He had no prior record, and played a minor but active role, with three adults being more prominent in the crime, which involved the beating of the home's occupant with the butt of a handgun. The young person was not in school and did not have employment.

• In R. v. Y. N., 2006 ONCJ 2416, Justice Nancy Kastner of the Ontario Court of Justice sentenced a young person with no prior record who was 17 years old at the time of the offence to 21 months custody and supervision, followed by 12 months probation. He had served 43 days of pre-sentence custody. Two individuals perpetrated the offence, but only one was apprehended. Justice Kastner noted the psychological damage caused to the victim, a 76-year-old woman who was bound and tied up, as well as the young person's lack of progress and attendance at school.

Previous responses to non-custodial sentences

[46] The accused has been subject to periods of probation preceding and following the date of these offences, as well as to the requirements of extra-judicial sanctions imposed on one occasion. He has had recurring difficulties in complying with reporting expectations. His probation officers have made numerous referrals to programs intended to assist him in not re-offending, but he has not taken advantage of those programs. The accused's lawyer suggests that the house arrest provisions of his recognizance restricted his ability to pursue appropriate programming, counselling or education. I do not accept this suggestion; there were many exceptions in the recognizance that would have allowed the accused to pursue these activities if he was sufficiently motivated to do so.

Harm done to the victims

[47] As noted above, the victims in this case suffered extreme fear and anxiety during the time they were held prisoner at gunpoint. It was intended that they feel such fear. There is no evidence that either victim suffered long-lasting psychological damage as a result of this crime.

Reparation

[48] No reparation has been made to Mr. Beda with respect to his substantial financial losses.

Pre-sentence custody

[49] The accused spent 35 days in custody after his arrest on these charges until his release to his mother under a recognizance which required him to reside with her, with many exceptions. He was found guilty of two breaches of that recognizance in 2012.

Previous findings of guilt

[50] These are noted above in the discussion of the accused's circumstances. In determining his sentence, I have considered those offences which pre-date the offences for which I am sentencing him. These offences include assault, failure to attend court; failure to comply with a recognizance; trafficking; possession of controlled substances; possession of property obtained by crime; and failure to comply with a recognizance. I consider the offences committed after July 26, 2010 only insofar as they cast doubt on the accused's assertion that he has made progress in changing his lifestyle.

Other aggravating or mitigating factors

[51] I have considered the following further aggravating factors:

1. These crimes involved careful planning and indicate some sophistication. Mr. Beda was targeted because of his ownership of extensive recording equipment. A ruse was employed to gain entry to his apartment. The accused and the other intruders were waiting to be admitted by Mr. Milot, and were wearing masks and socks on their hands in an effort to avoid detection.

2. The victims had a gun pointed at them for 30 minutes. The gun was not recovered. The victims believed that it was real and that they were at risk of being shot.

3. Mr. Beda's prized possessions as well as his savings were taken and not returned.

4. Gratuitous violence was inflicted on Mr. Beda.

5. The accused was on a recognizance with a house arrest condition when he committed these offences.

[52] I have taken into account the accused's youth at the time of these offences, the time he spent in pre-sentence custody, and the restrictive conditions of his release. I have noted the support received from his mother, which although heartfelt has not been effective. She has limited time to spend with him because of the obligations of her employment. I do not see any other factors as mitigating in this case.

Conclusion

[53] Professionals who have dealt with the accused have described him as intelligent and insightful. So far, he has been unable to put these strengths to good use.

[54] The accused says that he wants to finish school, keep away from criminal associates, and get a job. I do not doubt his sincerity, or his desire to be in a position to be a supportive father. I do doubt his ability to follow through on these good intentions. He expressed similar feelings to his probation officer in 2010, immediately before committing the offences for which I am sentencing him.

[55] The accused has failed to take advantage of the resources offered him during periods of probation. He has failed to take positive steps with respect to education or employment in the past two years, after he was charged with the offences for which I sentence him.

[56] The gravity of the accused's offences and the evidence indicating that non-custodial sentences imposed in the past have not been effective in rehabilitating him establish that an actual custodial sentence is required to meet the objectives of the Act. The maximum sentence permissible under the Act is a 36 month sentence of custody and supervision. Were it not for the position of the Crown, I would have imposed a sentence of 30 months custody and supervision. As it is, after having considered the 35 days spent in pre-sentence custody and the restrictive terms of his recognizance, I am of the view that the appropriate sentence is 24 months custody and supervision (16 months in custody followed by 8 months in the community under supervision), followed by 24 months probation (the maximum permitted under the Act), and I so order.

Level of custody

[57] Determinations about the level of custody are guided by s. 24.1(2) of the Young Offenders Act, which is made applicable by Order-in-Council 498/2004, in accordance with s. 88 of the Youth Criminal Justice Act. Sections 24.1(2) and (4) provide:

• 24.1(2) Subject to subsection (3), where the youth court commits a young person to custody under paragraph 20(1)(k) or (k.1) or makes an order under subsection 26.1(1) or paragraph 26.6(2)(b), it shall specify in the order whether the custody is to be open custody or secure custody.

• (4) In deciding whether a young person shall be placed in open custody or secure custody, the youth court or the provincial director shall take into account the following factors:

  • (a) that a young person should be placed in a level of custody involving the least degree of containment and restraint, having regard to

    • (i) the seriousness of the offence in respect of which the young person was committed to custody and the circumstances in which that offence was committed,
    • (ii) the needs and circumstances of the young person, including proximity to family, school, employment and support services,
    • (iii) the safety of other young persons in custody, and
    • (iv) the interests of society;

  • (b) that the level of custody should allow for the best possible match of programs to the young person's needs and behaviour, having regard to the findings of any assessment in respect of the young person;

  • (c) the likelihood of escape if the young person is placed in open custody; and

  • (d) the recommendations, if any, of the youth court or the provincial director, as the case may be.

[58] Given the provisions of s. 93 of the Act and the fact that the accused will be 20 years of age on January 10, 2013, any order that I make with respect to level of custody may have limited effect.

[59] The Crown asks that all of the accused's custodial term be served in secure custody. The defence asks that the entire term be spent in open custody, arguing that an open facility will afford him access to better programming and allow more contact with his family. Defence also points out that the accused has never attempted to escape custody and that he had a good record during a previous stay at Blue Jay Lodge, an open facility. The factors highlighted by the defence are relevant, but I must also consider the seriousness of the accused's offences and the circumstances under which they were committed. With all those factors in mind, I order that of his custodial term that the first 8 months be served in secure custody, followed by 8 months in open custody.

Other Orders

During the period of probation which I have ordered, I direct that the accused be subject to the following conditions:

1. Report forthwith to a probation officer upon commencement of the probationary sentence, and thereafter as required.

2. Reside where directed by the probation officer.

3. Have no contact, direct or indirect, with Savan Beda or John Thomas Murdoch.

4. Do not attend at 200 Wellesley Street East, Toronto.

5. Participate in counselling and programming as required by your probation officer and sign releases so that your compliance may be monitored.

6. Attend school regularly or seek and maintain employment.

7. Perform 30 hours of community service within the first 12 months.

8. Do not associate with anyone known to you to have a youth or adult criminal record except for the purpose of education, counselling or employment or with the written permission of your probation officer.

[60] I also order that a DNA sample be taken from the accused, and impose a 10 year weapons prohibition on him pursuant to s. 51 of the Act.

Released: December 3, 2012

Signed: "Justice E. B. Murray"