Supreme Court

R. v. Kakfwi, 2002 NWTSC 87
Date: 20021219
Docket: S-1-CR-2002000022

IN THE SUPREME COURT OF THE NORTHWEST TERRITORIES

IN THE MATTER OF:


HER MAJESTY THE QUEEN


- and -


WAYNE MATTHEW KAKFWI


Transcript of the Reasons for Sentence delivered by The Honourable Justice V.A. Schuler, sitting in Yellowknife, in the Northwest Territories, on the 13th day of December, A.D. 2002.


APPEARANCES:

Mr. N. Sinclair:   Counsel for the Crown

Ms. M. Engley:   Counsel for the Defendant


(Charges under s. 271, 266, 264.1(1) (a) CC)


THE COURT:   In this case, Wayne Matthew Kakfwi has been found guilty by a jury of sexual assault. He was acquitted of two other charges, so I will make no further reference to those two other charges.

Unfortunately, I think I probably did not express myself very well in some of the remarks I made when counsel were making submissions. But just in case there was some confusion, obviously, with respect to the sexual assault offence, the jury rejected Mr. Kakfwi's evidence and accepted the evidence of the complainant, and so I will refer to the facts as she indicated they were in her testimony.

The circumstances, therefore, are that Mr. Kakfwi met up with the complainant on the afternoon of November 13, 2001, at the Gold Range. They and others were drinking there. They continued to drink at the complainant's apartment and made, in total, two or three trips to the Gold Range.

The complainant's evidence was that quite a bit later, at night or in the early morning hours of the next day, while she and Mr. Kakfwi were sitting talking in her apartment, he grabbed her and dragged her to the bedroom and took her clothes off. She protested when he said he wanted to have sex with her, but he went ahead and had forced sexual intercourse with her and then forced her to perform oral sex on

[Page 1]

him in what, from her description, was a very violent manner, such that she had trouble breathing.

Mr. Kakfwi is a mature man of 39 years. The complainant is a mature woman of 40 years and suffers from a mental illness which was not specified in the evidence, although she did say she has problems with depression. That illness is being dealt with by medication. She lives in her own apartment. She was living in her own apartment with support from a local agency, and it appears from the evidence of Ms. Lawrence, her support worker, that her life skills are quite high on the independence level.

Crown counsel, I think, has fairly acknowledged that it certainly wasn't clear on the evidence that Mr. Kakfwi was aware of her disabilities.

After the sexual assault, the complainant was observed to have bruising on her arms where she said that Mr. Kakfwi had grabbed her, and also on her inner thigh where she said that he had forced her legs apart when she was trying to keep them together to stop him from assaulting her.

In my view, the bruising that she sustained and that was described, I have no hesitation in finding that it did come from the assault by Mr. Kakfwi, and, also, I think it can quite fairly be described as significant particularly in that the bruising on the leg was described as looking like fingerprints.

[Page 2]

Obviously, the complainant has suffered considerably from this sexual assault. She referred in her testimony to scars as a result of this, from which I understood her to mean emotional scars; and the Victim Impact Statement also describes nightmares, crying, and a fear of being home alone. These things, unfortunately, are not infrequently described by victims of sexual assault as the result of what has happened to them. Hopefully, with the support of those who work with the complainant and those who were supportive of her at the time that the incident occurred, she will be able to deal with the effects of this terrible occurrence.

A sexual assault indicates -- it reflects a complete lack of respect for, a disregard of the integrity of the person assaulted, and this sexual assault committed by Mr. Kakfwi certainly falls within that description.

With respect to Mr. Kakfwi's own background, I take into account what has been said on his behalf by his counsel. As I said, he is 39 years old. He has a family and he has training and has worked as a carpenter.

I have to take into account, of course, his criminal record which commences in 1986 and continues into this year 2002. There are a number of different offences on the record, but most notably and most

[Page 3]

importantly for the matter for which I now have to sentence him are the assaults. There are seven assaults in total, five of which Crown counsel has advised were spousal assaults. The May 21, 2002 conviction on the record is for a spousal assault that occurred earlier that month and, therefore, after the offence for which I must now sentence Mr. Kakfwi.

Now, the record obviously reflects offences for which Mr. Kakfwi has already been punished, and it is not open to the Court to re-punish him for those offences. But the record is of great concern. It indicates, in my view, a pattern of violent behaviour, and particularly violent behaviour towards his spouse.

The offence that occurred after Mr. Kakfwi was charged with the sexual assault, and obviously therefore after the sexual assault occurred, in my view is also of concern because it indicates that -- or perhaps I should say it is not a good sign. It indicates that there is perhaps not particularly good prospects for Mr. Kakfwi to deal with controlling his violent behaviour, and I say that because even after being charged with the sexual assault and after being placed on a conditional sentence for spousal assault (and by that I refer to the January 23, 2002 conviction), he committed a further spousal assault in May 2002. So that record does have to be of great concern to the Court.

[Page 4]

I have reviewed the letters that were submitted on Mr. Kakfwi's behalf, and those letters reflect a situation that isn't that uncommon. Obviously some people have good things to say about Mr. Kakfwi. His family has some good things to say about him. He does apparently support his family in a number of ways, but that, unfortunately, as we find with so many other cases, is contradicted by the violence that he has shown towards his spouse.

I do take into account Mr. Kakfwi's past as a survivor of abuse at Grollier Hall and I will accept that that is the case from what he has said and the material that has been filed; and it may be that with intensive help and counselling, he can overcome the problems that have resulted from his experience there. It may also be that much of the difficulty that he is having today is caused, at least in part, by what he experienced at Grollier Hall, but I don't think I can draw any concrete conclusions about that. Not all people who experience abuse go on to abuse others. So there is to some degree certainly -- in my view, there must be a choice that is made, and, unfortunately, Mr. Kakfwi seems to have gone along the wrong road.

I do accept that this is not a case where I should simply lock Mr. Kakfwi up for a very long time and throw away the key and say that there is no hope of rehabilitation, no hope of overcoming his problems;

[Page 5]

but I do have to observe that as a man of 39 years, he is going to have to make some very concerted efforts very quickly to deal with his problems because of recent years the violence that he has shown, as reflected by this case and also the violence that he has shown towards his spouse, obviously has to be of concern.

The sentence that I impose on him has to at least in part serve to protect people from his violence by removing him from society for a period of time, and the sentence must also reflect denunciation; in other words, how society condemns this kind of behaviour, how the community condemns this kind of behaviour, and it must also deter others, act to discourage others from engaging in this type of behaviour.

I do take into account that Mr. Kakfwi is aboriginal. The Criminal Code says that I must take that into account. There are no particular institutional factors that have been brought to my attention that may have resulted in his being before the Court on this particular charge other than the Grollier Hall issue, and, as I say, I do take that into account. But it is also clear that where the Court is dealing with violent offences, violent offenders, in effect, have to be treated relatively equally; and the fact that Mr. Kakfwi is aboriginal does not in some way lessen either the harm that he

[Page 6]

has done or the need for a severe sentence in this case.

I do take into account that Mr. Kakfwi apologized to the complainant in this case. It obviously comes at the last minute, but I accept that he feels sorry for what he has done to her. And I have to say that it is always very troublesome in cases like this. One would think a person who himself has been through abuse and knows, as Mr. Kakfwi said, of the trials and heartaches that result from that, then visits trials, difficulties, and heartaches on another person by abusing them. So it is a very complicated type of situation and one that certainly has caused a great deal of problems in our society.

I take into account the remand time. Although I must say that in looking at it as essentially two months of remand time, I give it very little weight because, in my view, the reason Mr. Kakfwi was in custody was because he had committed further offences. So it is not, in my view, worthy of the same weight that it would be if he had simply been denied bail from the beginning and was in custody only because of the one charge he was awaiting trial for.

I have looked at the cases that counsel referred to, and I note that in this particular case one of the distinguishing factors is that the act that Mr. Kakfwi committed involved violence that is in addition to the

[Page 7]

violence that is inherent in an act of forced sexual intercourse, and I refer, of course, to the added violence of the forced oral sex that took place.

Stand, please, Mr. Kakfwi.

Mr. Kakfwi, it gives me no pleasure to sentence anyone to a lengthy period of incarceration, but I feel that I must do that in this case. I sentence you to serve a term of four years' imprisonment. You may sit down.

I will have the clerk endorse the warrant with the recommendation that the correctional authorities consider allowing you to serve your sentence in the Northwest Territories so that you can continue to have the assistance of the Grollier Hall healing circle.

With respect to the firearm prohibition order, I take into account that the only offence on Mr. Kakfwi's record which involves the use of a firearm is the conviction for pointing a firearm in 1997. It is, therefore, five years old at this point in time. I do take into account that he does have other offences of breach of undertaking, failing to comply with recognizance or probation order; however, I think that has to be balanced with the fact that he lives in Colville Lake or Fort Good Hope, has connection with both communities, and that those are communities where people do spend a substantial amount of time on the land. So what I am going to do is make

[Page 8]

the firearm prohibition order. It will commence today and it will continue for a period of ten years from the date of Mr. Kakfwi's release from imprisonment; but pursuant to Section 113 of the Criminal Code, I authorize the Chief Firearms Officer or Registrar to issue the appropriate documents to Mr. Kakfwi so that he may possess a firearm for sustenance or employment purposes outside a community.

There will also be a DNA order. Do you have a draft order?

MR. SINCLAIR:  Your Honour, I neglected to bring the draft order with me. I will circulate it to defence counsel for signature and to the Court early next week. I apologize for that.

THE COURT:   Fine. I'll review the order when it has been submitted, and assuming that it is in the usual terms, unless counsel wish to come back before me about the order, you can just do it that way.

MR. SINCLAIR:  Thank you, Your Honour.

THE COURT:   Now, is there anything further that I need to deal with in this matter?

MR. SINCLAIR:  Nothing that I'm aware of, Your Honour.

MS. ENGLEY:   Nothing for defence. Thank you, Your Honour.

THE COURT:   Thank you, Counsel. Then we'll close court.

[Page 9]

Certified Pursuant to Rule 723 of the Rules of Court


Jane Romanowich,
Court Reporter

[Page 10]