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SENTENCING - Young persons - Adult sentences - Test - Custody and supervision order - Sentencing considerations - Rehabilitation - Mental Health

Friday, July 07, 2017 @ 11:10 AM  

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Appeals by the Crown and an accused young person, Okemow, from an adult sentence for offences related to two armed robberies. The offences arose from the robbery of a convenience store, and the mugging of two university students in which one student sustained serious injuries. Both robberies involved use of a knife. The robberies occurred three days apart. The accused was arrested shortly after the second robbery. He was demeaning toward police and exhibited disregard for the victims. The accused pled guilty to five offences related to breaches of youth probation, one breach of undertaking, two counts of possession of a weapon for a dangerous purpose, three counts of armed robbery, one count of theft under $5,000, one count of assault with a weapon, and one count of disguise with intent. The accused was 14 years of age at the time of the robberies. He was diagnosed with an Alcohol-Related Neurodevelopment Disorder (ARND) arising from Fetal Alcohol Spectrum Disorder (FASA), and Attention Deficit Hyperactivity Disorder (ADHD). His prospects for rehabilitation and reintegration were assessed as poor. A youth justice court judge imposed an adult sentence for the offences arising from the robberies and a youth sentence for the remaining offences. The blended sentences produced a combined sentence of 48 months' imprisonment. The judge applied the totality principle to reduce the sentence to 36 months. Credit for time served resulted in a net sentence of seven months' imprisonment plus three years' probation. The Crown and the accused appealed. The parties agreed aspects of the sentence required appellate correction.

HELD: Crown's appeal allowed and accused's appeal dismissed. The judge took into account the voluminous evidence regarding the accused's background, his various assessments, his cognitive limitations, and his ARND and ADHD diagnoses. Although the accused's limitations and diagnoses did not preclude an adult sentence, the judge failed to make a causal link between the accused's mental circumstances and the commission of the robberies, thereby improperly using those mental circumstances as a mitigating factor. The finding that the accused planned, instigated and led others in the commission of the two robberies was reasonably supported on the record. There was no basis for interfering with the conclusion the Crown rebutted the presumption of diminished moral responsibility. The judge's prediction regarding the accused's future conduct was reasonably supported on the record. The factors of proportionality outweighed those of rehabilitation. However, the sentence imposed was illegal, as its overall effect in directing custody without community supervision effectively imposed adult sentences for youth offences for which an adult sentence was unavailable. In addition, the three-year probation period exceeded the two-year maximum under the Youth Criminal Justice Act. The errors required the Court to resentence the accused. Having regard to the seriousness of the offences, the accused's diminished rehabilitative potential and the principles of denunciation, proportionate accountability and totality, a fit sentence was four years' imprisonment for the offences related to the robberies, and 148 days of secure custody plus 74 days of community supervision for the youth offences, running concurrently to the adult sentences. Given the time served to date, the net sentence going forward was 12 months' imprisonment. Sentence: 12 months' imprisonment.

R. v. Okemow, [2017] M.J. No. 173, Manitoba Court of Appeal, D.M. Cameron, W.J. Burnett and C.J. Mainella JJ.A., June 20, 2017. Digest No. TLD-July32017010