Supreme Court

R. v. Menacho, 2003 NWTSC 18
Date: 20030401
Docket: S-1-CR2002000116

IN THE SUPREME COURT OF THE NORTHWEST TERRITORIES

IN THE MATTER OF:


HER MAJESTY THE QUEEN


- vs. -


MATTHEW EARL MENACHO


Transcript of the Oral Reasons for Sentence by The Honourable Justice J.Z. Vertes, at Yellowknife in the Northwest Territories, on March 6th A.D., 2003.


APPEARANCES:

Ms. S. Smallwood:  Counsel for the Crown

Mr. G. Boyd:   Counsel for the Accused


THE COURT:   The offender has entered guilty pleas to three charges: using a firearm while committing an indictable offence, contrary to Section 85(1) (a) of the Criminal Code; assault, contrary to Section 266; and, breach of a firearm prohibition order, contrary to Section 117.01. All of these offences occurred as part of one event which took place in Tulita on November 2nd, 2002.

The facts were set out in a comprehensive Agreed Statement of Facts. I will not repeat them here except in brief outline. The offender, who is only 21 years old, and the 19 year old victim, with whom the offender was in a romantic relationship, the two of them living together at the time, were drinking at a party. For some reason, the offender accused his girlfriend of flirting with someone else. He became violent, assaulting her, and then he became dangerous, by taking a rifle and first threatening the victim and then by threatening to commit suicide (indeed by demanding that the victim pull the trigger as he was holding the rifle to his face). The victim eventually managed to get away. It was, as Crown counsel described it, a prolonged and terrifying experience for the victim. The offender, to his credit, turned himself in to the police. He has been in custody ever since.

All sentencing decisions have a number of

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objectives. One is deterrence; another is denunciation; and yet another is rehabilitation. In addition, in this case, I must pay particular attention to the offender's circumstances as an aboriginal offender. The general principles, however, remain the same. To paraphrase what was said by the Supreme Court of Canada in R. v. Cladue, [1999] 1 S.C.R. 688, the sentencing of all offenders, including aboriginal offenders, must proceed on an individualized or case-by-case basis. What is the appropriate sanction for these offences, committed by this offender, harming this victim, in the community where these events occurred, and what sentencing options present themselves in these circumstances?

There are circumstances here that call for a punitive sentence. The offender used a weapon in a highly dangerous manner, while under the influence of alcohol, and in a highly volatile emotional situation. The victim was someone with whom it can be said he was in a special position. The offender has a criminal record, albeit a relatively minor and unrelated one. But he has been convicted of three criminal offences in the past two years and he has been sent to jail previously. He should know that there are consequences to one's actions. Also, at the time of these offences, he was on a probation

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order as well as an order prohibiting him from possessing firearms. This was a crime of violence in the context of a domestic relationship, a type of crime that sadly is all too prevalent in many of our communities. All of these are aggravating factors that oblige me to emphasize the objectives of deterrence and denunciation.

There are also mitigating circumstances that call for a rehabilitative or restorative sentence. The offender is a relatively young man. He has taken responsibility for his actions by pleading guilty at an early opportunity. He waived the requirement for a preliminary hearing. He knows he did something horribly wrong. This was evident when he spoke before sentencing, spoke quite eloquently in my view, about his awareness of the need to change his life. I believe him to be quite sincere and serious in these aims.

The offender's background suggests positive prospects for rehabilitation and re-integration with his community. He has the continuing support of his family. Some years ago he committed himself to learning about his people's culture and traditions. He has achieved some success in this and has participated extensively in activities meant to promote and display these traditions. He has continued his education and has the support of his

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Chief and Band Council. All of this speaks in his favour.

The victim, through her Victim Impact Statement, has expressed forgiveness and a desire to resume an ongoing relationship with the offender. While such wishes cannot be determinative of any sentence, they are significant in terms of suggesting and reinforcing the prospects of rehabilitation and restoration. It also suggests that the victim, at least, considers this behaviour to be out-of-character for this offender.

Balancing all of these factors, I have concluded that there must be some period of incarceration but that period can be kept to a reasonable length, within the broad parameters suggested by counsel, and followed by a lengthy period of probation so as to assist the offender in his rehabilitative efforts and to provide some controls on his behaviour.

I have taken into account the time spent in pre-trial custody. In the result I will impose the following sentence which will result in the offender being sentenced to a total of 13 months of actual incarceration and probation for a period thereafter.

On Count 1, the offence of using a firearm, the sentence is the mandatory minimum of 12 months imprisonment.

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On Count 6, the offence of possessing a firearm while prohibited to do so, the sentence is one month imprisonment to be served consecutively.

On Count 3, the offence of assault, I suspend the passing of sentence for two years and place the accused on probation with the following conditions:

He is to keep the peace and be of good behaviour. He is to report to this Court if and when required to do so. He is to report to and be under the supervision of a probation officer. He is to participate in any counselling, education, or training programs as may be directed by his probation officer. He is prohibited absolutely from possessing or consuming any alcoholic or other intoxicating substances. He is to submit on the demand of a peace officer to the provision of a sample of his breath for purpose of analysis to ascertain compliance with this order. He is to perform 100 hours of community service work under the supervision of his probation officer.

I am required to consider a further firearms prohibition order. Crown counsel requests a lifetime prohibition. Considering the offender's age, and his personal characteristics and the nature of his community, I think a lifetime prohibition would be unduly onerous and unjustified. I will therefore impose an order prohibiting the offender from having

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in his possession any firearms or ammunition for a period of ten years starting from the date of his release. I will also, however, invoke the provisions of Section 113 of the Criminal Code to exempt him from this order for the purpose of subsistence hunting. On those occasions necessary arrangements can be made so that he can participate in such endeavors.

In my opinion, since this is a secondary designated offence and the offender is not a first offender, I think it is appropriate to require him to provide a bodily sample for DNA analysis and I so order.

Further, there will be an order under Section 491 of the Code forfeiting to the Crown the firearm seized in this case, that being the Remington Model 7600, .270 calibre rifle, serial number 8579391.

Finally, considering the circumstances, there will be no order for a victim of crime fine surcharge.

Mr. Menacho, I am sure that your counsel will go over in detail the terms of this disposition. But the fact that part of it consists of a suspended sentence and a period of probation means that if you do not follow any of those conditions or if for some reason you get into some further problem with the

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law, you can be charged for that. But more significantly, you can be brought back before me for resentencing on the assault charge in particular and at that time I may look very skeptically on whatever may be said about your good intentions. I took your words to heart. I took them to be seriously meant, and I wish you luck in the future. You are still a young man, there are many years ahead of you.

With respect to the remaining counts, Ms. Smallwood?

MS. SMALLWOOD:  Sir, I would ask that they be withdrawn.

THE COURT:   There has been no plea entered formally in this Court so we can mark them withdrawn.

MS. SMALLWOOD:  Thank you, sir.

THE COURT:   I think technically the more appropriate manner of proceeding would be to issue a stay of proceedings. But either way, we will mark them withdrawn since there was no plea entered in this Court formally after the re-election.

 Anything that I have neglected, Mr. Boyd?

MR. BOYD:   No, sir, I believe not.

THE COURT:   Ms. Smallwood?

MS. SMALLWOOD:  No, sir.

THE COURT:   Very well. I want to express my appreciation for both of your submissions on this

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matter.

(AT WHICH TIME THE ORAL REASONS FOR SENTENCE CONCLUDED)


Certified pursuant to Rule 723 of the Supreme Court Rules.

Lois Hewitt,
Court Reporter

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