Supreme Court

R. v. Kangegana, 2003 NWTSC 40
Date: 20030707
Docket: S-1-CR-20020000101

IN THE SUPREME COURT OF THE NORTHWEST TERRITORIES

IN THE MATTER OF:


HER MAJESTY THE QUEEN


- v -


RODNEY JASON KANGEGANA


Transcript of the Reasons for Sentence delivered by The Honourable Justice V.A. Schuler, in Yellowknife, in the Northwest Territories, on the 26th day of June, A.D. 2003.


APPEARANCES:

Ms. S. Smallwood:  Counsel for the Crown

Mr. P. Fuglsang:  Counsel for the Defence


Charge under s. 271 C.C.

Ban on Publication of Complainant/ Witness Pursuant to Section 486 of the Criminal Code


THE COURT:   Rodney Jason Kangegana was found guilty yesterday by a jury of sexual assault. A conviction has been entered and I must now sentence him.

For the most part, the factual situation is straightforward. The complainant, who was at the time the 15-year-old niece of Mr. Kangegana's common-law partner, was drinking at the hone of Mr. Kangegana and her aunt. She was intoxicated to the extent that she had to be helped upstairs. She passed out on a bed and awoke to find Mr. Kangegana on top of her. Her pants and panties, which she had been wearing when she passed out, had been removed and were on the floor. She testified that Mr. Kangegana was having sex with her while she was passed out. She said he was holding himself up with his hands on either side of her. She said she did not know what part of his body was touching her. In cross-examination, she said that she could not feel his weight on her when he was on top of her.

There was no medical or forensic evidence as she did not follow through with the request of the police that she go to the hospital.

Her testimony that Mr. Kangegana was having sex with her when she was passed out was not clarified. It was not clear whether she concluded that from what she saw when she came to or woke up, or whether she

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meant that he was actually having sex with her when she came to. When I say having “sex”, I mean sexual intercourse.

Certainly, I agree with Crown counsel that on the evidence of the complainant, Mr. Kangegana was attempting to have sexual intercourse with her, but it is simply not completely clear on her evidence whether he did in fact have intercourse with her. Of course it may be that the only reason he did not is because when she came to, she threw him off her and he fell on the floor.

So having considered it, and it may simply have been the way she worded what she said, but, as I say, it was never really clarified what she meant. So I find myself in a situation where I cannot find beyond a reasonable doubt that sexual intercourse took place. Nevertheless, as I say, he was certainly attempting to have sex with her while she was passed out, having obviously, and I think it was the reasonable conclusion, obviously the only conclusion on the evidence, that he had taken off her pants and panties and was on top of her.

Now the aggravating factors with respect to the event. Obviously this was the teenage niece of Mr. Kangegana's common-law partner. This young girl was staying in their home as she had done in the past when visiting Yellowknife. She was intoxicated to the

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point where she had to be helped upstairs, and she passed out. She was in an extremely vulnerable state. Mr. Kangegana was in a position of trust. The complainant was entitled to feel that she would be safe and protected when staying in his home and not subject to attack by him.

From having observed her on the witness stand and heard her testimony, it is obvious that she, the victim, has problems. She should not be drinking at all at her age, but obviously she has a number of other problems as well. But she is the child, and Mr. Kangegana is the adult. The adults in her life, including Mr. Kangegana, should be trying to help her and not be making her problems worse.

Although there was no victim impact statement, I have no doubt, based on testimony in other cases, victim impact statements in other cases, and hearing the results from victims of similar sexual assaults, that this experience is not something that the victim in this case is simply going to brush off. It is an experience that will simply add to what seem to be some significant problems that she has.

Having considered the factors of the offence, it is clear there are no mitigating factors at all.

With respect to Mr. Kangegana and his personal situation, I have been told that he is 32 years old, he is from Tuktoyaktuk, he has a grade seven education

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and has worked as a labourer and a carver.

He does have a criminal record which goes back to 1990, commencing in that year with a conviction for assault with a weapon.

Since then, he has had a number of other convictions for property and other offences. Most significantly, he has related convictions for common assault in 1994 for which he received a jail term of three months consecutive to a five-month jail term for a property offence, and he also has a conviction for sexual assault in 1997 for which he received 30 months in jail. I infer as a result that that must have been a serious sexual assault.

Since then, he has been convicted of impaired driving in the year 2000.

It is true that between November 2000 and yesterday, he has no convictions, but that is not a very lengthy period of time.

I do take into account from observing Mr. Kangegana and noting his name, that he is an aboriginal person, as I am required to take into account under the Criminal Code. However, no systemic factors have been identified as putting him in the position he is in today. In any event, in my view that is not a reason to treat Mr. Kangegana differently. Obviously he is in a situation where he has a prior conviction for sexual assault. From that

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in particular, I have to be most concerned for the protection of society. I have to be concerned that Mr. Kangegana himself be deterred from ever committing another offence of this nature. Also, I have to be concerned that the sentence that he is given shows how society denounces this type of behaviour, and hopefully that the sentence that may deter others from this behaviour.

The evidence in this case was a sad saga of drinking day after day. It is really shocking that people spend so much time, so much money, and waste their lives getting drunk. It is shocking to hear of the terrible things that happen when people get drunk, such as the victim in this case, a young girl, being sexually assaulted in her aunt's home by the aunt's common-law partner. I have to say, unfortunately it is almost as shocking that even if these people were prepared to quit drinking, it does not seem that there is much, if anything, in the way of help for them. I cannot help but think of the closure of the Treatment Centre that was the subject of a recent article in the local newspaper.

The only bright spot in this whole sad story is that the other two teenagers living in the home, the victim's cousins who testified here, did not drink that night. I hope that means that they do not drink at all. They have probably seen what a mess other

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people become, and what terrible things happen when people are drinking the way people were drinking on the evening in question.

I am sentencing Mr. Kangegana for sexual assault; I am not sentencing him for his drinking. At least in jail, he may be able, if he is willing, to get some help to combat his abuse of alcohol. I have made the remarks that I have just made simply because I hope that some of those involved, including Mr. Kangegana, will think about this. Day after day in court we hear about people drinking much like what was happening in this particular case, yet very few people seem to be able to want to deal with their own problems and, unfortunately, it does not seem that very much else is happening to deal with the problem. It is not just up to the government to put programs into place; people are responsible for their own actions. Mr. Kangegana is responsible for his actions whether he remembers what he did or not.

Mr. Kangegana, you should keep that in mind. I am assuming that at least some of your record is related to your drinking, so you know what you do when you drink. Do not come before the court in the future and say, “I was drinking, I don't remember.” The obvious solution is do not drink and maybe you will not do these things. I hope you will not do these things.

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Please stand.

In all the circumstances, taking into account what I have said about the facts of the case, taking into account all the other circumstances, in my view this was still a very serious sexual assault, and the sentence that I am imposing is tour years in jail.

It is a primary designated offence. No submission has been made as to why a DNA order ought not otherwise be made, so there will be a DNA order.

If you have a draft order, Ms. Smallwood, you can provide that to me now.

MS. SMALLWOOD:  Yes, I do have a draft order. I haven't shown it to Mr. Fuglsang. I don't know if you want me to do that after court --

THE COURT:   That's fine, you can look at it after court then.

There will also be a firearm prohibition order in the usual terms under section 109 as to firearms and other items, for a period of time that commences today and expires ten years from Mr. Kangegana's release from imprisonment.

In the circumstances, the victim of crime surcharge will be waived.

You may have a seat, Mr. Kangegana.

Is there anything else, counsel, that I need to deal with?

MS. SMALLWOOD:  Nothing, Your Honour.

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MR. FUGLSANG: Nothing, Your Honour.

THE COURT:  All right, that's fine. Thank you.

What you can do is submit the DNA order then to the clerk. Once you've had a chance to look it over and assuming that your consent is endorsed on it as to the terms of it, then I'll sign it.

Thank you very much, counsel.


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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