Supreme Court

R v. Tonka, 2002 NWTSC 38
Date: 20020509
Docket: S-1-CR-2001/114

IN THE SUPREME COURT OF THE NORTHWEST TERRITORIES

IN THE MATTER OF:


HER MAJESTY THE QUEEN


- v -


RICHARD CLINT TONKA


Transcript of the Oral Reasons for Sentence of The Honourable Justice V.A. Schuler, sitting in Yellowknife, in the Northwest Territories, on the 25th day of April, A.D. 2002.


APPEARANCES:

Mr. N. Sinclair:   Counsel for the Crown

Ms. M. Engley:   Counsel for the Defence


THE COURT:   All right, thank you.

Well, Mr. Richard Tonka is a 27-year-old man whom I convicted last week of several offences, the most serious of which was sexual assault.

Very briefly, for purposes of the sentencing record, the situation was that Mr. Tonka and his cousin, the complainant, were driving around Fort Simpson drinking and smoking marijuana which he had supplied.

According to the complainant's evidence, which I accepted, Mr. Tonka started to act very strangely and they had an argument after which he calmed down, and then after some more driving around, he just attacked her in the car and, against her protests, had sexual intercourse with her.

He had locked the car doors and had made efforts to subdue her; in other words, to stop her from struggling, and in the course of some of her crying and protesting, threatened to hit her on the head with a rock. So those are the basic facts on the sexual assault, the unlawful confinement, and the threatening to cause bodily harm charges.

The next day Mr. Tonka gave the complainant three marijuana joints when he saw her on the street and asked her if she would forgive him, and that then gave rise to the trafficking charge.

Some time after that he told her mother to tell

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her that he would give her money if she would drop the charge. He later told the complainant that he would give her $1000 and he left $100 and some marijuana on a table for her again in an attempt to get her to drop the charge, and then still later he asked her whether she had thought about dropping the charges in exchange for $1000. So all of that led to the obstruction of justice charge.

His contacts with the complainant are the basis for the breach of recognizance charge because, under his recognizance, he was to have no contact with her.

And finally, Mr. Tonka was on probation and had been put on probation approximately three months before this series of events occurred, and was on probation at the time of the offence.

Now, dealing first of all with the sexual assault. Obviously any sexual assault is a serious matter. In this case, the fact that the complainant, the victim of the sexual assault is Mr. Tonka's cousin, makes it more serious. There is an element of breach of trust, although I have to say not as strong as, for example, would be present in a parent/child or a husband/wife relationship, but certainly this was a young girl, his cousin who obviously, according to her testimony, seemed to look up to him to feel that he was someone she could talk to, and he then treated her with very callous

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disregard, total disregard for her personal integrity in committing these offences on her.

As to whether he deliberately shut the car door on her foot, whether he deliberately caused harm to her in doing that, I don't think on the facts I can go that far. Certainly he deliberately shut the door to stop her from leaving, to stop her from getting out of the vehicle, and I would say that he obviously didn't care whether her foot was in the way or not.

The effect on the victim of these events is set out quite clearly in her victim impact statement. It has been referred to by counsel. For the most part, obviously, there has been an emotional effect. She talks about the difficulty that it has caused for her in terms of being able to trust other people, the anger and the bitterness that she feels. But she also talks, and this is important too about the fact and I believe this was also said in her evidence at the trial, that after the sexual assault she started to drink more and use drugs more in order to try to forget what happened. And she also says in her statement that she found it impossible to concentrate at school and so she quit. So the effects on her have been quite serious and, unfortunately, these are the kinds of effects that we often see on victims of sexual assault. The only thing, of course, that the Court can do is just hope that she does get help to

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deal with these matters and that perhaps at some point in the future she can overcome all of this and move on with her life.

There are -- I would have to agree with Crown counsel, there really are no mitigating factors in this case. Mr. Tonka, of course, had the right to plead not guilty and I don't take that in aggravation in any way. It simply means that he doesn't have the mitigation that a guilty plea usually brings.

As far as his consumption of alcohol and drugs on the date of the sexual assault, that clearly is not an excuse. It may lend some weight to the submission that this wasn't premeditated, and I accept that there is no evidence that it was premeditated, but in my view, the evidence raises a very real concern about Mr. Tonka in the sense that the way that the victim described him, his actions and his sudden apparent strange behavior and becoming very angry and argumentative is a reason for concern, and I say that simply in the hopes that Mr. Tonka will try to get some help for that. Whether it was the alcohol or the marijuana or whether it was something else, certainly the description she gave of his behavior is somewhat unusual.

In terms of Mr. Tonka's future, I would say now, Mr. Tonka, you know what you're capable of doing when you are under the influence, that you better do some

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pretty serious thinking because obviously you can't control your actions or at least on this occasion you weren't able to control them at all if, in fact, it's the case that you were affected by what you had had to drink and what you had smoked.

Now, you have to take responsibility for what you did, and I'm not suggesting in any way that you can blame it on the alcohol or the drugs but, as I say, your cousin's description of how you were acting does strike me as indicating that there are some problems there that you need to take care of.

I do take into account Mr. Tonka's apparently difficult background. It's sometimes said that there is a vicious circle that happens with sexual abuse so that if you were sexually abused when you were a child, it may be that that continues, but that's not true in all cases and, again, that may be something, Mr. Tonka, that you should look at getting some help for.

But it does -- it always strikes me as, I suppose, difficult to understand in these cases that someone who is sexually abused would then turn around and do a similar thing to another person knowing the terrible feelings that would result to them and the terrible harm that would result to them from that.

I take into account Mr. Tonka's criminal record. From the sentences that were imposed, it appears that

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the offences may have been relatively minor in nature, but the record, itself, is not a one, it starts in 1991 in youth court and it continues from then right up to date. So it is a continuing record with not very many breaks in-between.

Of most concern in relation to this case, of course, are the previous two assaults which are obviously related to the type of behavior that he showed on this occasion and also the breaches of probation and failure to comply with recognizance and then the more recent breaches of undertaking which do indicate an inability or unwillingness to comply with court orders.

Now obviously he has not served any lengthy period of incarceration in the past, but equally obviously the offences for which he is now convicted are far more serious and do call for far greater periods of incarceration than what has been imposed in the past.

In terms of the pretrial custody in this case, I take into account that he was sentenced in December 2001 to 60 days for breaches of undertakings, but I would differentiate the situation from the case where someone is remanded in custody solely because of the offence with which they have been charged. In this case, obviously, the reason that Mr. Tonka is in custody is because he breached the release he was on.

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So I will take into account that there was some further pretrial custody after he would have served his sentence on the breaches, but I don't give it anything more than simply its face value.

I take into account, as has been submitted by defence counsel, that Mr. Tonka is an aboriginal man. There has been nothing specific in terms of institutional or other factors put before me that might relate to his current situation or the offences before the Court and obviously these are the types of offences that do, in my view, require a term of incarceration and it hasn't been suggested that anything other than that would be appropriate.

I also take into account the totality of the sentences that I am about to impose in that there are a number of offences, but the final sentence must still be appropriate and must not be overly long. And I also want to strive to keep the sentences in line with sentences for similar offences in this jurisdiction.

Stand up please, Mr. Tonka. Mr. Tonka, on the charges of sexual assault, unlawful confinement and uttering a threat, which are Counts 2, 3, and 4 in the indictment, I sentence you to serve a total of three and a half years imprisonment.

On Count 5 in the indictment, the obstructing justice offence, I sentence you to one year

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consecutive.

On Count 6, which is the offence of breaching your recognizance, since the circumstances of that are really the same as Count 5, the obstruction of justice, I'm going to impose a sentence of one year concurrent.

And on Count 7, the breach of probation, I impose a sentence of six months consecutive.

On Count 1, the trafficking charge, I agree that, in itself, it's at the lower end. To my mind what makes it more aggravating than the usual trafficking one might see in terms of giving three joints to a friend is the fact that, in effect, you were saying to this young girl that, Here is a bag of marijuana, here are three joints and hopefully that will make up for having sexually assaulted her which is really a callous and very cold-hearted thing to do. In any event, on that particular charge and again keeping in mind totality, I'm simply going to make it time served but, for the record, one day concurrent will be imposed. So that is a total of five years imprisonment, Mr. Tonka.

Now that's a long time and I am going to recommend, I am going to have the warrant endorsed with my recommendation that you -- that because of the circumstances of the sexual assault offence, that you be given access to anger management and also drug

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and alcohol counselling if the prison authorities deem that appropriate in your circumstances.

There will also be a firearm prohibition order in the usual terms for a period which starts today and will end ten years from the date of your release from imprisonment.

Does your client have any items? Does he need time to surrender any items?

MS. ENGLEY:   No he doesn't, thank you, Your Honour.

THE COURT:   All right, the order will just be that any such items are to be surrendered to the RCMP forthwith, and in light of the jail sentence I am not going to -- I'm going to waive the victim of crime surcharge so that will be waived. You can have a seat, Mr. Tonka. Is there anything further, counsel, that I need to deal with?

MR. SINCLAIR:  No, Your Honour, thank you.

MS. ENGLEY:   No, thank you.

THE COURT:   Thank you, counsel, for your presentation of the case and we will close court.


Certified pursuant to Practice Direction #20 dated December 28, 1987.


Sandra Burns R.P.R, C.R.R.
Court Reporter

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