Supreme Court

R. v. Atigikyoak, 2002 NWTSC 90
Date: 20030107
Docket: S-1-CR2002000083

IN THE SUPREME COURT OF THE NORTHWEST TERRITORIES

IN THE MATTER OF:


HER MAJESTY THE QUEEN


- vs. -


SHOVENAI ATIGIKYOAK


Transcript of the Oral Reasons for Sentence by The Honourable Justice J.Z. Vertes, at Yellowknife in the Northwest Territories, on December 19th A.D., 2002.


APPEARANCES:

Ms. S. Bond:   Counsel for the Crown

Mr. S. Duke:   Counsel for the Accused


Charge under s. 267(b) Criminal Code of Canada


THE COURT:   Shovenai Atigikyoak has entered a plea of guilty to a charge that on June 12th, 2002, she assaulted Robert Stirrett causing bodily harm to him.

The guilty plea did not come at the earliest opportunity. There was a preliminary hearing in this case. The plea is still worthy of considerable credit, however, since in my opinion it represents a sincere sign of remorse and a willingness to accept responsibility.

In this, as in any other sentencing, there are a number of objectives in sight. One is deterrence, both general and specific; another is denunciation of the violent conduct exhibited by this accused; and still another is the prospect of rehabilitation so that this accused can effect a permanent change in her behaviour.

In addition, I am directed to consider all reasonable available sanctions and, since this accused is an aboriginal offender, I must pay particular attention to her circumstances and any unique systemic or background circumstances that brought this person before the Justice system. The Supreme Court of Canada has admonished trial judges that the sentencing decision “must be holistic... taking into account all of the surrounding circumstances of the offence, the offender, the

[Page 1]

victim, the community, including the unique circumstances of the offender as an aboriginal person” (R. v. Gladue, [1999] 1 S.C.R. 688, at para. 81).

The accused and victim have lived in a common-law relationship for the past year. Indeed, the accused is pregnant with their child. On the date in question, they had been drinking and got into an argument. The argument became violent. At one point, the accused grabbed the victim by the hair, pulled his face close to hers, and then bit him on the chin. She bit him with such force that she tore a chunk of skin from his chin. The victim required surgery to re-attach the skin but, while the wound has healed, the re-attachment was not successful.

The aggravating features of this case are, beside the basic fact that this was, as Crown counsel put it, a violent act in the context of an intimate relationship, but also that the accused had assaulted this victim previously, had been punished for it, and was on probation at the time that she did this act. She has been convicted twice of assaulting the victim, once with a knife, and twice for breaching conditions, all in the past year. She has been incarcerated and put on probation. Indeed, the entire relationship has been volatile. I was

[Page 2]

told that the victim here, Mr. Stirrett, was himself convicted of an assault on the accused and is currently on probation.

The victim says that he wants the relationship to continue. They both want to continue the relationship. Generally speaking the Courts are reluctant to give too much weight to the attitude of the victim when dealing with an ongoing relationship. There are too many unknown dynamics at work to be able to draw the appropriate conclusions. Furthermore, the objectives of sentencing have to be considered in the context of society's overall best interests. It is necessary therefore to balance conflicting considerations rather than serving any single objective at the expense of all others.

The accused is 24 years old. She grew up in Kugluktuk, an Inuit community on the Arctic Coast, and then lived in some other places with her parents before moving to Yellowknife five years ago. She has a child from a previous relationship who has been adopted by the accused's parents.

Defence counsel stated that he could point to no particulars that would be relevant for consideration vis-a-vis this accused's circumstances as an aboriginal offender. The pre-sentence report seems to support that. The accused's home environment was not permeated by alcohol abuse or

[Page 3]

domestic violence. She recalls that she received affection as a child and witnessed affection around her. The family did report some problems but nothing as serious as we so often see in these types of cases. Something obviously went wrong somewhere since the pre-sentence report notes long-standing alcohol abuse and relational problems in this accused's life. She apparently now recognizes the need for counselling and education upgrading. She has been attending some counselling while incarcerated prior to sentencing.

Both counsel say there is a need for some ongoing structure that a probation order can provide. Both recognize as well that the seriousness of this offence requires some period of incarceration. Where they differ is on the length of the incarceration.

Defence counsel acknowledged that a conditional sentence is not appropriate in this case.

I agree with counsel that what is required is some mechanism whereby some structure can be provided to this accused, to her common-law partner, and some conditions that perhaps can maximize the chances of success for them and their soon to be born child. Yet at the same time, because of the nature of the offence, I think there is no alternative but to impose as well a period of

[Page 4]

incarceration taking into account the violent nature of the crime and the fact that she has been previously convicted for the same type of offence.

I thank both counsel for their submissions, they have been very helpful to me.

Taking into account all of the relevant factors, including the time spent in pre-trial custody, I sentence the accused to a term of imprisonment of 12 months to be followed by probation for a further period of 12 months.

The conditions of that probation will be as follows: She is to keep the peace and be of good behaviour. To attend Court when and if required to do so. To report forthwith upon her release to a probation officer and to continue to report as and when required. To attend and take part in all counselling and rehabilitative programs that may be recommended by the probation officer. She is to abstain absolutely from the consumption of alcohol or nonprescription drugs. Furthermore, she is not to live in any residence where alcohol is maintained. And she is to submit upon the demand of a peace officer to the provision of a breath sample to analyze for the presence of alcohol.

Ms. Atigikyoak, I think, based on everything that I have heard, that it may now be the time when you have come to realize the steps that you need to

[Page 5]

take and if you and Mr. Stirrett are serious about continuing this relationship, then obviously it is something that both of you will have to address. You are going to need a lot of help and support and, indeed, you are going to need to help and support each other, not only for your benefit but for the benefit of your child. So I wish you luck.

In addition, I will impose the mandatory firearm prohibition order for a period of ten years as required by Section 109 of the Criminal Code.

Under the circumstances, there will be no Victims of Crime fine surcharge.

Is there anything that I have neglected, counsel?

MS. BOND:   No, sir.

MR. DUKE:   No, sir.

THE COURT:   Thank you for your submissions.

(AT WHICH TIME THE ORAL REASONS FOR SENTENCE CONCLUDED)


Certified pursuant to Rule 723 of the Supreme Court Rules.


Lois Hewitt,
Court Reporter

[Page 6]