CAPCJ / ACJCP

Keeping Up Is Hard to Do:
A Trial Judge’s Reading Blog

SENTENCING-YOUTHFULNESS AS A MITIGATING FACTOR

R. v. Kollie, 2021 ABCA 389, November 26, 2021, at paragraphs 12 to 17:

The youthfulness of an offender is potentially relevant to sentencing…As noted, the extent to which the youthfulness of the offender will be mitigating is not a constant and depends on the circumstances of the offence and the offender: R. v Evans, 2019 ONCA 715 at para. 303, 147 OR (3d) 577.

Youthfulness is not an automatic mitigating factor with all offences. As summarized by C.  Ruby, Sentencing (10th ed), (Toronto: LexisNexis, 2020) at §5.190: “As offences become more serious, particularly in crimes of violence, the mitigating effects of age decrease and deterrence goes to the forefront”. This concept is confirmed in the leading Alberta case on the topic, R. v Johnas, 1982 ABCA 331 at paras. 12-15, 41 AR 183. Murder is by definition a violent offence, but in this case, the offence also engaged many aggravating factors.

Youthfulness can be a mitigating factor because youthful offenders may have a lower moral culpability due to their immaturity, and they may have greater prospects for rehabilitation. In this case, however, the appellant has not demonstrated any lower moral culpability. The robbery was carefully planned, not impulsive. The assailants brought two weapons with them and used them both.

Even though the appellant was 23 years old at the time of sentencing, he never expressed nor showed any remorse for this serious offence against a stranger, which was motivated by personal gain. After the murder, he travelled to Edmonton to celebrate his crime; he has not expressed any regret over that either. He refused to fully cooperate in the preparation of the presentence report requested by his counsel, thereby limiting the ability of the trial judge to conclude that rehabilitation was a realistic prospect. The burden of proof of that potentially mitigating factor was on him: Criminal Code, s. 724(3)(b).

The mitigating effect of youthfulness also depends on whether the offender has prior experience in the criminal justice system. Where the offender has been the subject of previous sentences that might have aided in his rehabilitation, but has continued to offend, and has breached conditions of the prior sentences, the mitigating effect of youthfulness diminishes. In this case, the appellant was in breach of a weapons prohibition previously imposed on him, which justifies an extension of the period of parole ineligibility.  As a standalone offence, the breach of the weapons prohibition would usually result in a consecutive sentence. He was also in breach of the conditions of his bail. His failure to respect limitations imposed on him does not enhance his prospects of rehabilitation. He had 21 youth convictions, including three for violence and one related to weapons.