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SENTENCING - Second degree murder - Young persons - Adult sentences - Test - Custody and supervision order - Sentencing considerations - Pre-sentence report - Seriousness of offence

Thursday, December 01, 2016 @ 7:00 PM  

Appeal by a young person offender, JFR, from a sentence for second degree murder. The appellant was 17 years of age when she attended a house party with a group of young people that were not invited. A disagreement arose between the appellant’s group and other attendees. Police arrived and the appellant’s group left. Several hours later, at the appellant’s instigation, the groups returned and entered the home through an unlocked door. The appellant, armed with a steak knife, stabbed a young man in the back. The victim was already suffering from other stab wounds perpetrated by another individual. He died as a result of the incident. The appellant disposed of the knife and deleted the text messages regarding her organization of the group’s return to the home. The Crown applied to sentence the appellant as an adult and argued in favour of a life sentence with no possibility for parole for seven years. Defence counsel sought the maximum seven-year intensive rehabilitation, custody and supervision order. The appellant was sentenced in accordance with the Crown’s position. The sentencing judge found that the Crown rebutted the presumption of diminished moral blameworthiness and concluded a youth sentence was insufficient to hold the appellant accountable. The appellant appealed.

HELD: Appeal allowed. The sentencing judge erred in finding the presumption of diminished moral blameworthiness and culpability was rebutted by placing undue emphasis on the appellant’s conduct on the night of the offence at the expense of her documented personal circumstances. Expert evidence established that the offender functioned at a low cognitive level, suffered from verbal and physical abuse by her mother, had symptoms consistent with diagnoses of various behavioural and mental health disorders and substance abuse, and functioned as a vulnerable and immature adolescent. Her plan to return to the party to seek retribution was completely irrational. The sentencing judge failed to see the appellant’s conduct through a lens of immaturity. The appellant ought not to have been sentenced as an adult. A fit sentence was the maximum youth sentence without credit for presentence custody, but credit for time served under the adult sentence. Sentence: four years’ custody and three years’ supervision.