Supreme Court

R. v. Aviugana, 2004 NWTSC 54
Date: 20040830
Docket: S-1-CR-2004000027

IN THE SUPREME COURT OF THE NORTHWEST TERRITORIES

IN THE MATTER OF:


HER MAJESTY THE QUEEN


- V -


JOHNNY ELIAS AVIUGANA


Transcript of the Oral Reasons for Sentence by The Honourable Justice V. A. Schuler, sitting in Inuvik, in the Northwest Territories, on the 24th day of August, A.D., 2004.


APPEARANCES:

Ms. S. Tkatch:   Counsel for the Crown

Mr. J. MacFarlane:  Counsel for the Defence


THE COURT:   Mr. Aviugana has pleaded guilty to and has now been convicted of sexual assault causing bodily harm. He did not appear for his jury trial on that charge, which was to have commenced yesterday, and upon being arrested was brought before this Court today. He declined to show cause, that he had a legitimate excuse for failing to appear yesterday, and therefore is deemed under Section 598 of the Criminal Code to have elected trial by a judge without a jury, and it was in those circumstances that he entered his guilty plea.

The facts of the case are that the victim had been out with some friends who accompanied her to her home. When the last friend left, she was alone and she blacked out. She awoke to find an unknown male on top of her, hitting her in the face and trying to pull her pants down. Her neighbours called the police about the noise that they heard from her home, and when the police arrived, they heard a woman crying and saying 'whelp.” They entered the residence where they observed the accused. They observed that the victim was in a semi-prone position on the floor with her pants and panties down to her ankles and blood on the floor around her, as well as on her face and elsewhere.

At the hospital, the victim was noted to have a bruised ear, two black eyes, swollen lips, blood on

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her face and hands, and blood clots in her hair. The victim was not able to say whether Mr. Aviugana, who she did not know, penetrated her, or describe the state of his clothing. She did remember him being on top of her, according to what was said here in terms of the facts. When the police entered the home and saw Mr. Aviugana, he was wearing pants that were not unbuttoned or unzipped.

The question that arises then on the evidence, which was put in by agreed statement of facts, is whether Mr. Aviugana attempted or did penetrate the victim or had genital-to-genital contact with her.

The DNA results in the reports that were made exhibits are not conclusive as to the presence of semen on the exhibits, and in my view the most that could be said from those reports is that there is a possibility of genital-to-genital contact, but not a certainty. So I have to find that penetration or genital-to-genital contact has not been proven beyond a reasonable doubt, which of course is the test for facts on a sentencing.

However, in any event, based on the victim's memory as was described, in other words that Mr. Aviugana had his pants down at one point, and the fact that there was, according to the facts read in, some time line between the assault being in progress and the police actually entering the residence and

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seeing Mr. Aviugana, and that combined with the fact that they announced their arrival, it seems to me that there was certainly time for Mr. Aviugana to pull up his pants and be dressed as described by the police on observing him.

In all the circumstances, this is what at one time would have been called an attempted rape; in other words, an attempt to have intercourse with the victim, and in this case with violence used to overcome her resistance.

The victim impact statement makes it clear that this terrible incident has had a strong effect on the victim. She has been afraid to be alone, afraid that Mr. Aviugana, who as I said earlier was unknown to her before this, might be around. Along with the physical injuries that she suffered, she also suffered embarrassment, and the psychological effects that are invariably suffered by victims of this type of offence.

The fact that Mr. Aviugana was intoxicated at the time of the offence is of course not a mitigating factor. Mr. Aviugana has pleaded guilty to the offence, although only today after, as I said, he failed to appear for his jury trial and lost his jury election. There is still some mitigation in his guilty plea, as late as it is, because it does mean that the victim has not had to testify again and go

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through the difficult situation of waiting to hear the jury's verdict. So some credit is to be given to Mr. Aviugana for his guilty plea, just not as much credit as if it had come earlier on in the proceedings.

It is aggravating that this sexual assault occurred in the victim's own home, where she is entitled to feel safe and secure from intruders and from harm. How Mr. Aviugana got into the home, in my view, really is not very important. He clearly had no right to be there, as he was unknown to the victim. do accept that there is no evidence of any planning on his part beforehand.

Mr. Aviugana is 29 years old, an Inuvialuit man raised in a fairly traditional life-style, from what has been said here. He says, through counsel, that he does not drink often, but when he does he does so to excess. Mr. Aviugana has been through alcohol treatment. I am sure that he knows what he needs to do about his drinking. Drinking to excess is not an excuse for what happened here or for committing crimes in general.

Of concern is the fact that Mr. Aviugana has a related record. In 1999 he was convicted of assault for which he received a fine. In 2002 he was convicted of sexual assault for which he received six months incarceration. He was also convicted at that

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time of three offences involving failures to comply with court process.

Counsel advised that the 2002 sexual assault involved him sexually touching a victim who was in her home alone. Now he stands convicted of sexual assault causing bodily harm, a crime for which Parliament has decreed the maximum punishment is 14 years in jail.

It has been said repeatedly that the main sentencing principles in sexual assault cases are denunciation, in other words showing how society condemns this type of behavior; and general deterrence, in other words discouraging others from committing these types of offences.

In this case, I have to be concerned about those things, but I also have to be concerned about deterring Mr. Aviugana himself from committing any further such offences. The six-month jail sentence he received in 2002 obviously did not deter him. The community, and the community, of course, includes women who may be alone in their homes, needs protection from him, especially since this offence is even more serious than what he did in 2002, and it does involve a significant level of violence.

I do take into account the three months that Mr. Aviugana spent on remand, and I will credit them as six months. I also take into account that he is an aboriginal person; however, no factors have been

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brought to my attention in connection with that which would justify it having an impact on the sentence I impose.

As is always the case, the various cases that have been referred to by counsel have some similarities to this one, but in some ways they are also different; they are helpful, however, in determining what the sentence should be in this case.

Stand please, Mr. Aviugana. Taking into account all of the circumstances, what stands out in this case, in my view, is that it was a very violent assault. You are 29 years old, Mr. Aviugana. Quite often I see people in court who have serious records when they are younger, but as they get older they tend to either stop committing crimes or they do not commit as serious crimes. You are 29 years old, and your crimes seem to be getting more serious. So you better do some pretty serious thinking on your own, because if you commit another offence like this you can only be assured of looking at longer and longer periods of time in jail, and I am sure you do not want to spend the rest of your life in jail.

So in all of the circumstances, as I say, in my view this was a very violent offence, and the appropriate term of imprisonment would be three and a half years. I am going to credit the six months against that. So the sentence that I am giving you is

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three years in jail. You may sit down.

Now, there will be a firearm prohibition order commencing today, and it will expire ten years from your release from imprisonment. Unless I hear otherwise, the order will be that all firearms and other items referred to under Section 109 are to be surrendered to the RCMP forthwith.

There will also be, since this is a primary designated offence, there will be an order for the taking of Mr. Aviugana's DNA in the usual terms. I take it you may not have a draft order with you, Ms. Tkatch?

MS. TKATCH:   Unfortunately it's in Yellowknife. I will have that prepared for Mr. MacFarlane's approval.

THE COURT:   All right. That is fine then. Then I will ask you to ensure that it is submitted to me for signing within 30 days of today. And in the circumstances the victim fine surcharge will be waived.

Now, is there anything else that I have overlooked?

MR. MACFARLANE:  Your Honour, I don't know if it's Your Honour's practice or not, but defence would request, if possible, a recommendation on the Warrant of Committal that if possible Mr. Aviugana serve his sentence in a Northern facility. Sometimes that may

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help the people at North Slave Correctional Centre, where he would be in a population of many similar offenders and programs that are targeted for their needs. I would ask, if possible, that recommendation be included.

MS. TKATCH:   Your Honour has not had any evidence before you with regards to many family ties or close family ties to the area. I'm a little hesitant in having the Court maybe restrict the Corrections hands in terms of classification or placement for Mr. Aviugana, particularly when this is one of violence and whether Territorial can handle it. So I'm just a little leery of that recommendation.

THE COURT:   All right. Well, I think that the people at the Correctional Centre are very well placed to decide where inmates should serve their time. I am going to make the recommendation, considering that Mr. Aviugana is a resident of the Northwest Territories and from what I have heard about his background, and I am sure that the Correctional authorities will do what is best in the circumstances. It is, after all, a recommendation, not a direction. So I am content to make it and then leave it in their hands as to what they decide to do in the end.

Is there anything further then, counsel, that needs to be addressed?

MS. TKATCH:   No, Your Honour.

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MR. MACFARLANE:  No.

THE COURT:   All right. Well, thank you very much for your efforts and for resolving this case. will close court.


Certified to be a true and accurate transcript, pursuant to Rules 723 and 724 of the Supreme Court Rules

Joel Bowker
Court Reporter

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