Supreme Court

R. v. Minoza, 2005 NWTSC 44
Date: 20050419
Docket: S-1-CR-2004000138

IN THE SUPREME COURT OF THE NORTHWEST TERRITORIES

IN THE MATTER OF:


HER MAJESTY THE QUEEN


-and-


TRAVIS RAYMOND MINOZA


Transcript of the Oral Reasons for Sentence by the Honourable Justice V.A. Schuler, sitting at Yellowknife, in the Northwest Territories, on March 18th, A.D. 2005.


APPEARANCES:

Mr. J. Burke:   Counsel for the Crown

Mr. G. Boyd:   Counsel for the Accused


(Charges under s. 268, 266, 264.1(1), 267(a), 117.01(1) Criminal Code)


THE COURT:   Mr. Minoza has entered guilty pleas to, and is now convicted of, six counts involving five offences of violence against his then live-in girlfriend and one unrelated count involving a breach of firearm prohibition orders; involving a breach on two occasions of firearm prohibition orders.

The facts are that Mr. Minoza and the victim were living together, she having come to his community of Jean Marie River from another community to babysit. She apparently knew no one in Jean Marie River until she met Mr. Minoza. About a month after they got together Mr. Minoza threw a punch at another man that she was sitting talking to at a party but hit her instead, knocking her unconscious. She was scared and did not seek immediate medical attention. This seems to have been because Mr. Minoza discouraged her from doing so, and though he did not threaten her, she was afraid of what he might do if she did not listen to him. Accordingly, it was not until months later determined that she had, in fact, suffered severe damage to her eye as a result of the punch and now cannot see out of it. That is the event reflected in count 1, the aggravated assault.

About a month after that event, in November,

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2003, during an argument Mr. Minoza pushed the victim to the floor and kicked her in the legs. That is the assault on count 2.

On January 1st, 2004 Mr. Minoza became angry at the victim at a party accusing her of flirting with someone else, told her to come home with him and promised that he would not hurt her, and then once at home pushed her inside the house and then down on a couch and threatened her saying, “I should just kill you right now and get it over with.” That is count 3 in the indictment, uttering a death threat.

After that, in March of 2004, when he was drinking and angry, Mr. Minoza hit the victim in the side of the head with a flashlight which caused her to fall to the floor. He then kicked her in the mouth cutting her lip and kicked her in the stomach. She ran away from him, but he caught up to her and his father had to intervene to stop him pursuing her further. Those events are the assault with a weapon in count 4 of the indictment.

I come then to count 5. On June 1st, 2004, after accusing her of sleeping with his brother, Mr. Minoza told the victim to leave, and when she commenced to do so, he grabbed her, threw her on the bed and sat on her chest yelling at her. She

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was having trouble breathing and he got off of her when he noticed that. That is the assault in count 5 of the indictment. The next day the victim left the community and went to the police.

In dealing first with those five offences, the aggravating factors are that these are spousal assaults by nature. Mr. Minoza and the victim, who I understand from the Agreed Statement of Facts was 30 years old at the time, were living together. It is also aggravating that this is a continued course of conduct over a period of several months. According to the Agreed Statement of Facts, the only one of the assaults that resulted in lasting physical injury was the first one, the aggravated assault, and although apparently not meant for the victim, the punch was obviously a very hard one, causing her to lose her sight in one eye.

There were also emotional injuries to the victim from these assaults. In her victim impact statement filed in July of 2004 she refers to the fact that even then she feels scared, confused, uncomfortable, nervous and powerless, which, of course, is not unusual for victims of this type of continuing abuse. She also indicates that she does not want anything further to do with Mr. Minoza. Mr. Minoza may not yet be in the worst

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offender or worst offences category, but, obviously, if he repeats this pattern of assaults against any future girlfriend or spouse, he likely will be.

As far as mitigating factors go, Mr. Minoza has entered guilty pleas to all the charges. He waived his Preliminary Hearing, so there has been no need for the victim to testify at all. He is entitled to substantial credit for that, because it has saved her the trauma of testifying, and it also indicates to me that he is remorseful for what he did.

I am told that Mr. Minoza is now 27 years old, he has a grade eight education, and he has had employment off and on in Jean Marie River as a labourer. I take into account that he is an Aboriginal person. No systemic or background factors have been brought to my attention which might account for Mr. Minoza having committed these offences, and considering that these are offences of violence, I don't see the fact that he is Aboriginal as warranting any significantly different treatment of him.

Mr. Minoza says through his counsel that after being released from a term of imprisonment in 2001 he wanted to stay out of trouble and tried to, and it seems that he did for about two

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years, but that he simply could not deal with the relationship with the victim.

In looking at Mr. Minoza's criminal record, it is clear that Mr. Minoza has had problems dealing with other things or other people, not just this particular relationship. He has a criminal record that goes back to 1990 when he was a youth. Among a number of other convictions are convictions for assault in 1993 and aggravated assault in 1994. As an adult he has an assault conviction in 1996, aggravated assault in 1997 and assault with a weapon in 2000. The latter two offences must have been fairly serious because he was sentenced to imprisonment for 21 months on the 1997 aggravated assault and 20 months on the 2000 assault with a weapon.

I am told by counsel that none of the assaults on the record were spousal assaults. That indicates to me that Mr. Minoza has a tendency to turn to violence in his dealings with people quite apart from the victim in this case or anyone that he is in a spousal relationship with. So in sentencing him I have to consider not only what will serve as denunciation of the offences before me and deterrence of others, but also deterrence of Mr. Minoza personally, because it is clear that there is a need to protect other

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people from him.

In relation to count 6 in the indictment, Mr. Minoza has previously twice been ordered not to possess firearms and he breached those orders in 2003 and 2004 by having in his possession a rifle which he used to shoot ducks. There is no indication that any use was made of the rifle to harm, threaten or scare anyone, and, indeed, there is no indication whether anyone else was present when Mr. Minoza was using the rifle. I note, however, that he does have a record for breaches of court orders; for example, for failing to appear, failing to comply with a recognizance, although he has no such convictions since 1999.

The Crown seeks a short jail term on the breach charge and a global sentence on all counts of four to five years imprisonment less whatever credit is given to remand time. Defence counsel says that I should credit the remand time, which is approximately nine and a half months, as 19 months and impose a 24-month sentence, which would be equal to a sentence of about three and a half years.

The issue, then, really is how to deal with the remand time. Mr. Minoza has been in custody, never having had or apparently requested a bail

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hearing since June 1st or 2nd of 2004 when he was arrested. He waived his Preliminary Hearing in November. The Crown says that the delay from then to now was at Mr. Minoza's request. I don't think that delay is so significant as to have any effect on the credit to be given to the remand time. In other words, I don't see this as a case where the delay was sought by the accused so as to manipulate a two--for-one credit, if that is what Crown counsel was suggesting.

The real issue seems to me to be whether remand time is or is not more difficult than straight time at the North Slave Correctional Centre, since the aspects of remand time that are more difficult than straight time is the reason usually given for according remand time more credit than its actual value.

Certainly, in terms of remission and such things as temporary absence passes, there is a difference there, and those are not available when a prisoner is on remand.

In terms of differences in programs and whether there are any real differences in the programs that would be available, I don't feel I have enough information before me to come to any firm conclusion on that. Certainly, it is not unusual to credit remand time on a two-for-one

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basis, and absent some more specific information that might make that unreasonable or unjustifiable, I am going to credit the remand time in this case as 18 months.

If I were to sentence Mr. Minoza for each of the offences individually in this case and without having regard to the remand time, I don't think it would be unreasonable to impose a sentence of four to five years, considering his record and the sentences he has received in the past, particularly in 1997 and 2000. But taking into account the guilty plea and totality, a sentence in the range of five years would be excessive.

Stand, please, Mr. Minoza. The global sentence that I am going to impose on you is one of four years, in other words, 48 months, but I am going to credit to that the 18 months for remand time, resulting in a sentence of 30 months in jail. Now, I have not broken that down count by count. I will simply allocate it as 29 months on counts 1 to 5 globally and one month consecutive on count 6. You may have a seat, Mr. Minoza.

There will be a DNA order in the usual terms. Do you have one, Mr. Burke?

MR. BURKE:   I am missing the last page,

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Your Honour. I am going to have to prepare that, but I will also have to prepare another order, I believe, in any event. So I will have to provide that to My Friend for signature and then to the Court in the future.

THE COURT:   All right. Well, I am going to direct that it be submitted to me within two weeks of today.

MR. BURKE:   That's fine, Your Honour. I can finish it today.

THE COURT:   I have found in some cases the orders don't come in for so long, and I don't know why that is, but it is just easier to keep track of them and make sure they get processed if there is some kind of time line.

So there will be a DNA order. I will direct that you submit the actual order for signing within two weeks. There will also be a firearm prohibition order.

Now, there was this issue of notice, and, as I read the annotations in the Criminal Code, to impose the lifetime firearm prohibition order the accused has to be given notice. You have indicated that there was some notice given. It hasn't been put into evidence. I have always taken the view that if the Crown wants to rely on that notice, it should be submitted in court so

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that it is clear the notice was given.

In the circumstances and considering that Mr. Minoza is from the small community of Jean Marie River and that he is Aboriginal, I am going to make the firearm prohibition order 10 years; in other words, commencing today, expiring 10 years from his release from imprisonment. I will order under section 113 of the Criminal Code that the Chief Firearms Officer and other authorities be authorized to issue the appropriate permits, et cetera to him so that he can have a firearm for hunting.

Can I assume that an order that any firearms be surrendered immediately would be appropriate or does your client need more time?

MR. BOYD:   I will just confirm, Your Honour. Immediately, Your Honour.

THE COURT: All right. There will be an order, then, that any firearms, explosives or ammunition be surrendered immediately to the RCMP.

Now, Mr. Minoza, just on that point, you should be aware that if you continue to breach firearm prohibition orders, you may lose the right to have a firearm for your entire life, and I am sure you don't want that. I think that would be very difficult for someone living in a

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small community, as you do. So it is not the most serious breach of a firearm order that I have seen, but you have to be aware that unless you have got authorization to have a firearm you cannot just go breaching the firearm order by taking up a gun when you feel like going hunting. So please keep that in mind, because otherwise you could, as I say, lose the right for your entire life.

Is there anything further on this case, counsel?

MR. BURKE:   With respect to the DNA order, I was going to inquire whether that relates specifically to one charge, I'm referring to the aggravated assault, Your Honour, or is it made on all counts?

THE COURT:   Well, it would be required on the aggravated assault.

MR. BURKE:   Yes, that is the primary designated offence.

THE COURT:   Is that the only one that is a primary?

MR. BURKE:   I believe so, yes. The assault with a weapon -- I know the simple assault is secondary, and I would just like to check the assault with a weapon. Sorry. As we proceeded by indictment, it's primary, as well.

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THE COURT:   All right. Well, then, it will be one order, obviously, but it will issue on both of those primary designated offences.

MR. BURKE:   And finally the victim of crime surcharge, as well?

THE COURT:   That will be waived in the circumstances, as well.

MR. BURKE:   Thank you, Your Honour.

THE COURT:   Anything from you, Mr. Boyd?

MR. BOYD:   Nothing further, Your Honour.

THE COURT:   All right. Thank you, counsel.


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

Jill MacDonald, CSR(A), RPR
Court Reporter

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