Supreme Court

R. v. Hagen, 2003 NWTSC 49
Date: 20030328
Docket: S-1-CR-2002000082

IN THE SUPREME COURT OF THE NORTHWEST TERRITORIES

IN THE MATTER OF:


HER MAJESTY THE QUEEN


- v -


CHESTER ARTHUR HAGEN


Transcript of the Reasons for Sentence delivered by The Honourable Justice V.A. Schuler, in Yellowknife, in the Northwest Territories, on the 27th day of March, A.D. 2003.


APPEARANCES:

Ms. C. Carrasco:  Counsel for the Crown

Ms. M. Engley:   Counsel for the Defence


Charges under ss. 266 C.C. and 811 C.C.


THE COURT:   It is difficult to know what to do in a situation like this, in other words, to know what might stop Mr. Hagen from assaulting Ms. Firth and from obviously causing some sort of problems for her when, as he had been on numerous occasions, he's on a peace bond.

Her evidence at this trial as I understood it at least on the occasion in question, was that as long as he was not drinking she was content to have him around but when he was drinking there was a problem. In fact on the day in question she told him not to come back if he had been drinking.

These two people have a lengthy history together. I do not think I am off the mark at all in saying they both obviously have a number of problems, the main one perhaps of which is their abuse of alcohol.

The criminal record, which I think is the one thing that stands out in terms of Mr. Hagen's background, starts in 1962. It is not until 1983 that there is a conviction that involves Ms. Firth. It is not a conviction, it is actually a peace bond application that was granted in which she and Christopher Hagen, the son, were the complainants. So certainly since 1983, 20 years, there has been a continual pattern of there being peace bonds and recognizances that were ordered where Ms. Firth has been the complainant, or sometimes Ms. Firth and

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Christopher Hagen, the son. Starting in 1986 there is a continuing pattern of assaults on her: assault, assault with a weapon, assault causing bodily harm, unlawful confinement.

There was a hiatus, if I can call it that, when Mr. Hagen was sentenced to four years for assault causing bodily harm on her and nine months consecutive to that for unlawful confinement of Ms. Firth. That term of imprisonment would have expired, and then there is nothing on the record until the breach of undertaking conviction in 2002 and then obviously these offences. When I say “nothing on the record”, I mean nothing involving Ms. Firth or Christopher Hagen.

The pattern of this record has to in my view mean that paramount for my consideration has to be the protection of Ms. Firth from this man and specific deterrence, in other words, to deter him from assaulting her.

Is it realistic to think that I can do that in some way other than by simply removing him, by incarcerating him? Well I do not think there is. Nothing has been suggested certainly.

One thing that struck me in the evidence in the interview that Ms. Firth had with Constable Varkonyi was, and she said something along the lines of “Why does he hate me so much?”

It is a terribly dysfunctional and a terribly sad

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situation, but obviously beyond that it is a situation that I have to do something to ensure that at least for some time in the future that can be avoided so that she has some sort of a break from this continuing violence.

I do take into account the fact that there was some evidence that Ms. Firth was throwing things at Mr. Hagen, but this all started with an argument. He was saying things to her that upset her and there was arguing over his drinking. There is no indication that he was harmed in any way by what she was throwing at him. Her evidence was that he got angry at the fact she was throwing things at him. So in my view it is clear that he was acting in anger. He was not acting in any way in self-defence. It was just anger because of what was going on, her pestering him I suppose about whether he was drinking. None of this is an excuse for his behaviour. I am sure it has happened thousands of times between these two people and probably is how much of the violence on the record happened; in other words, he is drinking, they are arguing, and he becomes angry and takes it out on her, uses her, as Ms. Carrasco said1 as his punching bag.

There was some evidence that she does rely on him in some ways. I suppose it is to his credit that he seemed to in some ways care for her and want to help her out. But it is just such a terribly destructive

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and dysfunctional situation. Obviously he isn't helping her out in the end when he treats her like this.

I take into account that the assault in the range of assaults that come before the court, is not the most serious. It is not at the lower end of the scale of common assaults either. She was left with some quite notable injuries and she was obviously very scared.

I take into account the remand time, but I also note that Mr. Hagen at least after August 20th was essentially in remand with respect to this charge because he breached his undertaking. In those circumstances, I am reluctant to credit the remand time on a two-for-one basis as is often done, because I think that when someone has breached an undertaking and that is the reason they are in remand, it should be treated differently than when they are detained from day one and are simply unable to obtain release.

I have to bear in mind that the charge is common assault and the sentence I impose notwithstanding that the Crown has gone by indictment has to reflect that. There was no evidence that the injuries caused Ms. Firth lasting discomfort or that she was treated in any way for them. But, having said that, they still were, as I say, quite notable injuries. It is not a matter of simply one bruise.

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In the circumstances what I am going to do is credit the remand time as the equivalent of six months.

Stand up, please, Mr. Hagen.

With respect to Count 1 in the Indictment, the assault on Georgina Firth, I sentence you to two years in jail. On Count 2, failing to comply with a condition of your recognizance, I sentence you to three months consecutive.

You can have a seat. You may sit down.

In the circumstances, considering the continuing violence and notwithstanding that no firearm was used in the offence, and considering that there has been no indication that Mr. Hagen requires the use of a firearm, I am going to order under section 110 of the Criminal Code that you be prohibited from possessing any firearm, ammunition or explosives or any of the other items referred to in section 110(1).

I just want to make sure I am reading this correctly, counsel. Section 110 seems to indicate that it is any time up until ten years that the order can be made.

MS. CARRASCO:  That's my understanding, so it can be up to ten years.

THE COURT:   In the circumstances, I do not have see any reason to treat it differently than if it had been a mandatory order, and in the circumstances I

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think there is a real concern for Ms. Firth's safety. So the order will commence today and it will expire ten years from Mr. Hagen's release from imprisonment.

There will also be, again because of the pattern of violence and in the absence of any submissions that it would work any injustice to Mr. Hagen, there will be a DNA order in the usual terms.

Do you have a draft order?

MS. CARRASCO:  Yes, I do, and Ms. Engley has reviewed it with me.

THE COURT:   I take it there's no submissions?

MS. ENGLEY:   No, there's no submissions.

THE COURT:   All right, I've signed the order so that order will issue.

Is there anything else that I need to deal with? The victim of crime surcharge will be waived in the circumstances.

MS. CARRASCO:  That's everything, Your Honour.

THE COURT:   Anything from the defence?

MS. ENGLEY:   No, Your Honour.

THE COURT:   Thank you, counsel, for your conduct of the case and we'll adjourn court.

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Certified to be a true and accurate transcript, pursuant to Rule 723 and 724 of the Supreme Court Rules of Court

Annette Wright, RPR, CSR(A)
Court Reporter

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