The Court sentenced an Indigenous man to 245 days in prison (time served) followed by three years of probation for various offences including robbery of a convenience store. Counsel initially agreed to a joint submission on sentence for 30 months in prison but this position was abandoned once counsel investigated Gladue factors and the legal relevance of Fetal Alcohol Spectrum Disorder to moral blameworthiness.
Simon Peter Head, a 26-year-old Aboriginal man pleaded guilty to 12 separate charges. A joint submission was presented of 30 months of jail, less 5 months time served, leaving 25 months left to be served in a federal institution where he had never been before. Gladue factors were read in superficially. The Crown’s position was that Mr. Head had an aggravating record with regard to breaches and failings to appear, as well as a history of assault and property offences.
In March 2017, a Gladue report was prepared. Mr. Head at the time of the report was almost 23 years of age. This report was prepared for 2 robbery charges that he was facing in 2017. Mr. Head dropped out of school, and in respect to Child Welfare system, he had been fostered. He had two different group homes between the ages of 12 and 16. Upon leaving, he did not have any means of employment and has not maintained any type of employment since then. When he was young, he started using alcohol. When he was 19, he then switched to crystal meth, which is his current addiction, and he struggles with now.
In 2017, he was hopeful to get out of his criminal life. He was interested in his Aboriginal heritage. He wanted to work with an Elder and learn how to make drums. He recognized that he needed help to manage, was remorseful for what he had done, particularly to the victims. He wanted to try and go back to do some schooling, particularly in computers. Although not formally diagnosed with FASD, he does have indicators. Although the Court found that Mr. Head’s moral culpability is at the lower end, it does not to detract from the fact that he caused harm to individuals.
The Court advised that counsel must understand that before bringing joint submissions before the court involving Aboriginal persons, they must do a careful analysis of the intersections of the Gladue factors related to this accused and what is a fit and proper sentence. Coming before a court and expecting a sentencing judge to rubberstamp a joint submission is not what Gladue says what the judge’s function is.
Although joint submissions are important to the administration of justice, they should not be accepted where the joint submission has failed to properly consider Gladue factors including FASD and other cultural circumstances. Judges should not be adding to the overrepresentation of Aboriginal persons in prisons where alternative approaches are available and which would meet the principles and objectives of sentencing. Counsel must be prepared to come to court with the proper information. This was not the case in the matter before this Court as demonstrated in its history.