[1] Mr. Edwards appears before me for sentencing on a conviction for second degree murder. Mr. Narcisse and Mr. Johnny appear before me for sentencing on convictions for manslaughter. All convictions relate to the beating death of Douglas Gormley on or about March 19, 1999.

[2] The circumstances were fully set out in Reasons for Conviction (2001 BCSC 275). Near midnight, after concluding his shift as a cook at a Denny's Restaurant, Mr. Gormley departed on his bicycle for home and family. His route took him on the bicycle path across the Overlander Bridge in the City of Kamloops.

[3] At the same time, Mr. Edwards, Mr. Narcisse and Mr. Johnny, all strangers to Mr. Gormley, were walking on that same path in the opposite direction. The three acosted and assaulted Mr. Gormley until he lay prostrate and helpless on the pathway. Mr. Edwards threw Mr. Gormley's bicycle over the railing of the bridge during that portion of the attack. The three delivered kicks to Mr. Gormley's head until he was in or near a state of unconsciousness. Mr. Narcisse and Mr. Johnny then ended their participation in the attack. Mr. Edwards continued his attack with additional kicks and stomps to the head of Mr. Gormley. Actual death was caused during this portion of the attack by a kick to the temple.

[4] The attack concluded with Mr. Narcisse and Mr. Johnny pulling Mr. Edwards off the dead or dying Mr. Gormley. All three then fled the scene and travelled to their intended destination, a residence near the bridge. Although aware of the life-threatening injuries caused to Mr. Gormley, none made any attempt to direct medical attention to Mr. Gormley.

[5] As noted in Reasons for Conviction, the beating left Mr. Gormley's head a bloody, pulpy and nearly unrecognizable mass.

[6] Mr. Edwards is nearly twenty-two years of age. He has been in custody for the last two years awaiting disposition of this matter.

[7] Mr. Edwards is a native person with a very deprived upbringing. Many trace much of the cause to the identity-and-culture-destroying residential school system to which his grandparents were subjected. As a child, Mr. Edwards suffered emotional, physical and sexual abuse. There was little parental guidance. He was a seasoned alcoholic by the time of this offence. He comes from a family and community riddled with alcoholism, violence, and unnatural death.

[8] Mr. Edwards has a youth record of seven offences in 1995 and 1996. They involved both property offences and offences of violence. As an adult, he was convicted of assault with a weapon and assault.

[9] Not surprisingly, clinical psychologist Dr. Lee found a very damaged and disturbed person with a severe personality disorder. Mr. Edwards suffered from depression and suicidal thoughts for years, often masked by anti-social behaviour and substance abuse. He was unable to control his anger and became aggressive and combative. His toughness and reputation as a fighter became his source of self-esteem. He had little awareness of the harm caused to others when fighting. Dr. Lee, however, did find Mr. Edwards exhibited many non-verbal signs "likely" indicating that Mr. Edwards was genuinely remorseful.

[10] Dr. Lee is of the opinion that Mr. Edwards requires the intensive treatment and counselling programs available in a federal penal institution.

[11] Robert Narcisse is twenty years of age and has a similar background to that of Mr. Edwards. The residential school system also took its toll on his family. Like Mr. Edwards, Mr. Narcisse suffered a deprived upbringing with sexual, emotional and physical abuse. He is an alcoholic. He has nine convictions as a youth and one as an adult. None were offences of violence. At the time of this offence, he was in violation of court imposed conditions regarding curfew and alcohol consumption. Previous counselling efforts were fruitless. Throughout this trial, he has enjoyed the strong support of his family.

[12] Forensic psychiatrist Dr. Paul Janke is of the opinion, which I accept, that in the absence of intense intervention Mr. Narcisse represents a high-to-moderate range for the risk of violent re-offending. Dr. Janke strongly recommends the violent offender program available in a federal penal institution. Close supervision will be required upon his release.

[13] Kyle Johnny, now eighteen years old, was raised on a reserve near Chase and in various surrounding communities. The residential school system also had significant impact on his family. While he was exposed to alcohol abuse and violence, his childhood was relatively benign. He was not a victim of abuse as a child. He suffers from attention deficit hyperactivity disorder. There were significant disruptions in home and school placements. At age eleven or twelve years, he began abusing alcohol, associating with negative peers and engaging in aggression. Four or five months of foster care at that time due to behavioural problems saw no improvement in his behaviour. His mother is well educated, articulate and strongly supportive of Mr. Johnny. Her band is prepared to offer an apparently well thought out and professional program of counselling and treatment.

[14] Without intervention, he represents a moderate-to-high risk of violent re-offending. Appropriately intensive treatment programs would require actual incarceration for two years. There must be close supervision on his release.

[15] The offence has had a devastating effect on the wife, two children, and family of Mr. Gormley. They have suffered immeasurably, both emotionally and financially. At great sacrifice, Mrs. Gormley has faithfully attended all aspects of these regrettably but necessarily lengthy court proceedings.

[16] Mr. Gormley was a devoted and caring father and husband. He was a kind, generous and loving man. His family can never recover from his loss. Understandably, Mrs. Gormley will neither forget nor forgive. She feels that only an appropriately denunciatory sentence will enable the family to move on with their lives.

[17] Pointing to the appropriate sentencing principles, the aggravating factors and previous guiding authorities, the Crown submits that parole ineligibility for Mr. Edwards should be fixed at a time from fourteen to eighteen years. The Crown submits that for Mr. Narcisse and Mr. Johnny a sentence of six to ten years is appropriate, being reduced to from four to eight years after consideration of the two years in custody awaiting disposition. As a four-year sentence will likely not permit the intensive treatment program recommended by Dr. Janke, the Crown submits that a sentence, after considering time served, from six to eight years is appropriate.

[18] On behalf of Mr. Edwards, Mr. Watt dealt at appropriate length with Mr. Edwards' tragic aboriginal background, not as an excuse but as an explanation for his conduct in this offence. Applying the principles enunciated in R. v. Gladue (1999), 133 C.C.C. (3d) 385 (S.C.C.), he submits that a period of parole ineligibility should be fixed at the minimum ten years.

[19] On behalf of Mr. Narcisse, Mr. Tessovitch points to previous authorities in submitting that a sentence from four to six years is appropriate. With the equivalent of four years having been served, that would translate into a sentence from a minimum of no further time in custody to a maximum of two years.

[20] On behalf of Mr. Johnny, Mr. Kaatz points to Mr. Johnny's youth, aboriginal background, lack of a criminal record and limited moral culpability in the offence to submit that, with the equivalent of four years having been served, a suspended sentence should be imposed. As earlier mentioned, the Neskonlith Band offers apparently well-organized guidance and counselling resources to assist Mr. Johnny with a healthy re-integration into the community.

[21] I must be guided by the principles of sentencing set out in s. 718 of the Criminal Code. The readily apparent aggravating factors are such that there is no issue that the principles of denunciation, deterrence and separation from society require a period of incarceration of some significance.

[22] Those principles must not be acknowledged to the point of excluding rehabilitation, wherein lies the best protection for the public. These are young men with long lives ahead of them. With intensive counselling and therapy, there is hope for their rehabilitation, particularly with the active participation and commitment of their native communities.

[23] Gladue, supra, sets out the principles I am to apply when dealing with aboriginal offenders pursuant to s. 718.2(e) of the Code. In addition to taking judicial notice of the broad systemic and background factors affecting aboriginal people, I have evidence demonstrating how those factors played out in this case. The final principle outlined in that case and re-affirmed in R. v. Wells (2000), 141 C.C.C. (3d) 368 (S.C.C.) provides that the more serious and violent the crime, the more likely it will be as a practical matter that the terms of imprisonment will be similar for similar offences and offenders, whether aboriginal or not.

[24] However, in the very recent Court of Appeal decision in R. v. Courtereille (2001) BCCA 254, the Chief Justice applied the principles outlined in Gladue to reduce the period of parole ineligibility for second degree murder from fourteen years to twelve. In that case, there was a violent killing by a young native woman who grew up in circumstances similar to that of Mr. Edwards.

[25] This was a random, unprovoked, brutal, senseless and cowardly attack on an innocent and helpless stranger. Unlike many other similar offences, there is in this case no hint or suggestion of Mr. Gormley having placed himself in a position of risk or peril. He was doing no more than returning home after work to his family, riding his bicycle over a public bridge on a lane designated for bicycles. The crime that followed struck fear and caused outrage in the hearts and minds of reasonable members of the community. Following the crime, the accused persons thought only of their own escape without detection. Even when that was accomplished, not one entertained the possibility of seeking medical intervention for Mr. Gormley.

[26] This is the type of crime that threatens the sense of peace, well-being and security that is the foundation of any healthy community. It is replaced with a cold community chill, leaving law-abiding people reluctant to leave their locked homes.

[27] I sentence Mr. Edwards to imprisonment for life. Applying the principles outlined in R. v. Shropshire, [1995] 4 S.C.R. 227, I would have concluded that the period of parole ineligibility for Mr. Edwards be fixed at fourteen years. Considering the principles outlined in Gladue and Courtereille, I will fix that period at twelve years. Let me add the caution stated by the Chief Justice in Courtereille. Mr. Edwards has been sentenced to imprisonment for life and will not be released until such time as the parole authorities are able to determine that he is a suitable candidate to be released without being a danger to the community.

[28] Turning to Mr. Narcisse and Mr. Johnny, the same aggravating factors apply, with these exceptions. They withdrew from the attack, though only after the three of them had delivered sufficient kicks to Mr. Gormley's head to leave him at or near a state of unconsciousness. Mr. Narcisse was in violation of court ordered conditions.

[29] A mitigating factor is that both pulled Mr. Edwards away from Mr. Gormley after Mr. Edwards continued alone with the attack on Mr. Gormley. Mr. Narcisse has no record for violence. Mr. Johnny has no record. Both are youthful. Both have participated successfully in treatment programs while incarcerated. There is hope for rehabilitation with intensive ongoing treatment programs.

[30] Both have served the rough equivalent of a four-year sentence. Counsel for both sides have reviewed a considerable number of case authorities with a view to providing me with an appropriate range of sentence.

[31] A difficulty is this: the intensive treatment program recommended by Dr. Janke would require an additional four year sentence to better ensure their acceptance into the program. Therein lies their best hope for rehabilitation. However, I may not increase an otherwise appropriate sentence for that purpose.

[32] Even applying the moderating effect of Gladue, the aggravating factors are such that I have concluded that a sentence of seven years for Mr. Narcisse and six years for Mr. Johnny is appropriate, before consideration of time served.

[33] With appropriate deductions for time served, I sentence Mr. Narcisse to imprisonment for a period of three years. I sentence Mr. Johnny to imprisonment for a period of two years, less one day. That latter sentence will be followed by a period of probation, which I will deal with shortly.

[34] The sentence imposed on Mr. Johnny obliges me to consider a conditional sentence pursuant to s. 742.1 of the Criminal Code and the principles outlined in R. v. Proulx (2000), 140 C.C.C. (3d) 449 (S.C.C.). Wells, supra, obliges me to consider the same principles when considering the appropriateness of imposing a conditional sentence on an aboriginal offender as for s. 718.2(e).

[35] I have concluded such a sentence is not appropriate. This is a crime of significant violence. Mr. Johnny represents a moderate-to-high risk of committing further violent offences without intervention. Release on a conditional sentence, even with strict conditions, would endanger the safety of the community. It would also be inconsistent with Mr. Johnny's best hope of rehabilitation. Continued treatment in a secure setting is required before a return to his community and the commendable resources it offers in that regard. As well, I have also concluded that such a sentence would be inadequate to meet the need for denunciation and deterrence for a crime of such violence, even if punitive conditions were attached to his release.

[36] I will order that Mr. Johnny be placed on probation for a period of two years following his release from custody, the terms being as follows:

[37] With respect to all three persons, I will impose a s. 487 D.N.A. order, a s. 109 Firearms prohibition for life, and a return of exhibits as may be sought by the Gormley family.

"I.B. Josephson, J."
The Honourable Mr. Justice I.B. Josephson