



COURT OF APPEAL FOR ONTARIO

CITATION: R. v. Hepp, 2014 ONCA 555

DATE: 20140721

DOCKET: C54169

Hoy A.C.J.O., Gillese and Lauwers JJ.A.

BETWEEN

Her Majesty the Queen

Respondent

and

Gregory Hepp

Appellant

Brian H. Greenspan and Seth Weinstein, for the appellant

Eric Siebenmorgen and Nathan Kruger, for the respondent

Heard: July 15, 2014

On appeal from the sentence imposed on July 22, 2011, by
    Justice R.D. Gordon of the Superior Court of Justice.

By the Court:

[1]

The appellant, a 17-year-old at the time of the offences, received a
    life sentence with eligibility for parole after seven years, for his role in
    the brutal murder of a 15-year-old girl who wanted to be his girlfriend.

[2]

He appeals against the imposition of an adult sentence.

BACKGROUND IN BRIEF

[3]

The victim accompanied the appellant and his older companion, Kris
    Lavallee, to a campsite in a remote forest location outside of Sudbury.  After
    killing her, the appellant and Lavallee burned her body, dismembered the
    remains and buried them in an effort to destroy the evidence.

[4]

The victim was missing for over a month before her remains were
    discovered.  Due to the condition of the remains, it was difficult to establish
    a medical cause or the instrumentality of death.

[5]

The Crown theory at trial was that the appellant and Lavallee acted in
    concert in killing the victim and burning and dismembering her corpse.  The
    appellant testified that Lavallee was solely responsible for the offences and
    that he took no part in them.

[6]

After deliberating for approximately ten hours over two days, the jury
    convicted the appellant of second degree murder and offering an indignity to a
    dead body.  The Crown then brought an application pursuant to s. 64(1) of the
Youth
    Criminal Justice Act,
S.C. 2002, c. 1
    (the 
YCJA
) to have
    the appellant sentenced as an adult.


[7]

Despite a positive pre-sentence report and psychiatric assessment which
    found that the appellant was a low to moderate risk of violence in the future,
    the trial judge sentenced him as an adult.  In doing so, he gave full,
    thoughtful reasons.

[8]

At p. 2 of those reasons, the trial judge reminded himself that in
R.
    v. D.B
.
, 2008 SCC 25, [2008] 2 S.C.R. 3, the Supreme Court said
    that there is a separate legal and sentencing regime for young people because
    they have heightened vulnerability, less maturity, and a reduced capacity for
    moral judgment, which together entitles them to a presumption of diminished
    moral blameworthiness or culpability.  As a result, the Crown and not the young
    person has the burden of showing that the presumption of diminished moral
    culpability has been rebutted and the young person is no longer entitled to its
    protection.

[9]

He then carefully considered the factors in s. 72 of the
YCJA

to determine whether the presumption had been rebutted.  He concluded that
    it had and explained why a youth sentence would not be of sufficient length to
    hold the appellant accountable for his actions.  At p. 17 of the reasons he
    stated:

The seriousness of this offence along with the circumstances
    surrounding it are of concern including, in particular, [the appellants]
    involvement in the murder, his involvement in the desecration of [the victims]
    remains, and most tellingly, in the detached and indifferent manner in which he
    continued with his life thereafter.

[10]

Further,
    he noted, unlike a youth sentence, an adult sentence would come with lifetime
    supervision following parole, which would ensure that the appellants treatment
    needs receive long term management well beyond his time in custody (p. 17).

THE FRESH EVIDENCE

[11]

The
    appellant introduced fresh evidence on the appeal in the form of institutional
    records.  The fresh evidence shows that the appellant has continued to make
    progress in his rehabilitation while serving his sentence, including the
    completion of a number of correspondence courses.  It also includes an updated risk
    assessment by Dr. Evans which confirms that, as at the time of sentencing, the
    appellant poses a low to moderate risk of violence in the future.  The fresh
    evidence also shows that since the appellant has been moved from a youth
    facility to an adult provisional facility, he has not received treatment for
    his mental health issues.  It further indicates that the appellant, who was
    born in Germany and lived there until he was a young teenager, may wish to
    ultimately return to Germany.

[12]

The
    Crown filed responding fresh evidence which indicates that the appellant is currently
    housed in a prison wing in which he is not completely segregated from other
    inmates.  The evidence also shows that the appellant has repeatedly requested
    to remain housed in his current area.  But for those requests, there is no
    impediment to his being housed within the general inmate population. 
    Furthermore, the appellants requests to remain in his current area have
    impacted on his ability to access programming available to inmates within the
    regular prison population.

THE ISSUES

[13]

The
    appellant raises two grounds of appeal.  He submits that the trial judge:

1.      mischaracterized
    the implied factual findings in the jurys verdict; and

2.

erred in imposing an adult sentence.

ANALYSIS

Did the trial judge mischaracterize the implied factual
    findings in the jury verdict?

[14]

The
    trial judge held that the implied factual finding from the jurys verdict for
    second degree murder was that the appellant had stabbed the victim.  The
    appellant contends that this was speculative reasoning on the part of the trial
    judge as it was not a necessary implication of the jurys verdict.  He points
    to the fact that the jury had been told that there were two possible routes to
    conviction in this case  that the appellant had stabbed the victim or that he
    was a party to the assault that led to her death.

[15]

On
    the facts of this case, we do not accept this submission.  The judge was fully
    alive to his responsibilities in terms of fact finding.  At p. 12 of his reasons,
    he correctly recites the legal principles governing the fact-finding duties of
    a trial judge embarking upon a sentencing hearing following a jurys verdict. 
    He noted that because he did not have the benefit of expressed findings of
    fact, he had to determine the facts that reasonably flowed from the jury
    findings.  He refers to
R. v. Ferguson
, 2008 SCC 6, [2008] 1 S.C.R.
    96, stating that he was bound by the expressed and implied factual implications
    of the jurys verdict and where the factual implications are ambiguous, he had
    to make his own independent determination of the relevant facts.

[16]

In
    light of the jury instruction in this case, a finding of guilt required the
    jury to conclude that the appellant had participated in the assault on the
    victim from which her death ensued, and that his participation was of such a
    degree that it was a substantial and integral cause of the death.  The jury
    was also instructed that if they were satisfied beyond a reasonable doubt that
    the appellant and Lavallee had acted in concert, they did not have to determine
    who, as between the two, struck the fatal blow

[17]

In
    the agreed statement of facts filed on this appeal, there is an admission by
    Lavallee, to a fellow musician, that he and the appellant had killed the
    victim.  According to Lavallee, he had started to choke her and the appellant
    then reached over and stabbed her once.  Dr. Fairgrieve gave evidence that ribs
    six and seven on the right side of the victims body had an indentation and
    sharp force trauma caused by a metal implement.  The insert and orientation of
    the wound was such that it was from the front of the body to the back.  He also
    identified that thoracic vertebra number four exhibited sharp force trauma
    caused by a bladed instrument.

[18]

As
    a practical matter, in light of the evidence, the only way in which the jury
    could have found that the appellant participated in the assault to such a
    degree that it was a substantial and integral cause of the death is if he
    inflicted at least one stab wound on the victim.

Did the trial judge err in imposing an adult sentence?

[19]

The
    appellant argues that despite the seriousness of the offence, an adult sentence
    was not necessary to achieve the objectives of the
YCJA
.  He contends
    that his progress by the time of sentencing  as well as his progress since
    then  demonstrates his motivation to change and his capacity for
    rehabilitation.  He maintains that imposition of the maximum youth sentence, in
    addition to pre-trial custody of over two years, was sufficient to hold the
    appellant accountable.

[20]

We
    see no basis on which to interfere with the trial judges imposition of an
    adult sentence.

[21]

The
    trial judges reasons show a full and balanced assessment of all of the factors
    set out in s. 72(1) of the
YCJA
.  He identified and considered the
    practical consequences of imposing an adult sentence, rather than a youth
    sentence.  Further, he acknowledged the remarkable progress that the appellant
    had made since the offences and the remorse that he had demonstrated.  In assessing
    the appellants moral culpability, the trial judge expressly took into
    consideration Dr. Evans evidence regarding the appellants history of
    substance abuse and his diagnosed mood order.  The trial judge addressed the
    evidence regarding the appellants mental condition and identified treatment
    needs.  In this regard, it is to be noted that the trial judge ordered that the
    appellant be placed in a youth facility until his 21st birthday and then be
    transferred to an adult provincial facility until the completion of his
    sentence.

[22]

However,
    as explained above, the trial judge ultimately concluded that a youth sentence
    would not be of sufficient length to hold the appellant accountable for his
    actions.

[23]

The
    fresh evidence, in the main, is confirmative of the evidence before the trial
    judge.  It does not alter the balancing which the trial judge undertook in
    determining that an adult sentence was necessary.  As for the fresh evidence
    indicating that the appellant may wish to ultimately return to Germany, we
    accept the Crowns submission that pursuant to the
International Transfer
    of Offenders Act
, S.C. 2004, c. 21 and the
Convention on the Transfer
    of Sentenced Persons
,

21 March 1983, Can. T.S. 1985 No. 9
    (entered into force 13 May 1985), a mechanism exists for the appellant to seek
    to have Canada and Germany agree to transfer him to Germany to serve the
    remainder of his sentence.

DISPOSITION

[24]

Accordingly,
    the appeal is dismissed.

Released: July 21, 2014 (A.H.)

Alexandra Hoy A.C.J.O.

E.E. Gillese
    J.A.

P. Lauwers J.A.


