Supreme Court

R. v. Turo, 2003 NWTSC 62
Date: 2003 10 22
Docket: S-1-CR-2003000073

IN THE SUPREME COURT OF THE NORTHWEST TERRITORIES

BETWEEN:

HER MAJESTY THE QUEEN

Appellant

- and -



JOSEPH DINO TURO

Respondent

MEMORANDUM OF JUDGMENT


[1] The Crown appeals the sentence imposed at Fort Good Hope in Territorial Court for assault using a weapon and resisting arrest. The Respondent received one month imprisonment on each charge to be served concurrently followed by one year probation on the assault charge.

[2] The Crown s position on these appeals is that the sentences are unfit and out of the appropriate range in all the circumstances. It is submitted that the sentences imposed do not adequately address the principles of denunciation, deterrence and protection of the public. It is said that the sentencing judge placed undue emphasis on the rehabilitation of the Respondent and a custodial sentence of 12 to 15 months should have been imposed.

[3] The Respondent was not represented by counsel at the trials and sentencing. It is apparent from the transcript of the trial that the Respondent contested the assault charge because he believed he was innocent inasmuch as no physical force was applied by him to the complainant. In his testimony he readily admitted he had picked up an axe and threw it at the complainant from a distance of about fifty feet. The axe missed her by one to four feet; the evidence of the distance varied. The judge found that the Respondent was careless in hurling the axe and that an assault was proven by the action of the Respondent and the fear provoked in the complainant by the incident.

[4] The Respondent contested the charge of resisting arrest because he believed that his resistance to being handcuffed was justified. He had remonstrated unsuccessfully with the police to allow him to walk unrestrained from the house where he was arrested to the police vehicle. The police insisted on applying handcuffs in the circumstances.

[5] Both of the offences can be characterized as occurring at the less serious end of the spectrum of violence for such offences.

[6] The Respondent was 29 at the time of the offences and is now 30. His criminal record shows that he received custodial sentences on two occasions as a youth. Since becoming an adult, he has been convicted of assaults and other related matters for which he has been given custodial sentences for as much as 12 months on each charge.

[7] The Respondent had little to say at the sentencing, but two of his acquaintances spoke on his behalf. Both the local Chief of the Dene people and a former court worker had known the Respondent for years. They stated they believed the Respondent could be rehabilitated and pointed out that he had recently lost two of his brothers to suicide. The former court worker offered to provide some support and guidance to the Respondent.

[8] The Supreme Court has stated that in the absence of an error in principle, failure to consider a relevant factor, or overemphasis of the relevant factors, the decision of the sentencing judge should only be varied on appeal if the reviewing court concludes the sentence imposed is demonstrably unfit: R. v. McDonnell, [1997] 1 S.C.R. 948.

[9] In the sentencing of this Respondent the judge was alive to the circumstances of life in a small, northern community. He received evidence from two people in the community of the Respondent s nature and the desire of some members of the community to assist in his rehabilitation. The judge was obliged to take notice of the special circumstances of the Respondent, as an aboriginal, which were not attendant in a non-aboriginal community: R. v. Gladue, [1999] 1 S.C.R. 688. Here such special circumstances existed in that the Respondent had suffered the loss of two brothers to suicide in a recent period. The far greater rate of suicides among aboriginals is such that it can be considered in its impact upon an individual in these particular circumstances.

[10] Denunciation and deterrence must be the primary considerations in sentencing of violent offenders but it cannot be said that the Respondent did not receive a significant punishment. His incarceration for one month resulted in his removal from his community with attendant lack of contact with family and friends. Moreover, the community voluntarily extended an offer to assist in rehabilitation here, a somewhat unusual event, which is to be encouraged. The sentence represented a combination of attention to denunciation and deterrence with rehabilitation of the Respondent.

[11] I am not persuaded that the sentencing judge erred or that the sentence is demonstrably unfit. The appeal is dismissed.




E. A. Marshall
  J.S.C.

Dated this 22nd day of October 2003.


Counsel for the Appellant: John Burke

Counsel for the Respondent: James Brydon

S-1-CR-2003000073


IN THE SUPREME COURT OF THE
NORTHWEST TERRITORIES



BETWEEN:

HER MAJESTY THE QUEEN

Appellant

- and -


JOSEPH DINO TURO

Respondent




MEMORANDUM OF JUDGMENT OF
THE HONOURABLE JUSTICE E. A. MARSHALL