Supreme Court

R .v.  Sikyea, 2005 NWTSC 70
        Date: 20050811
Docket: S-1-CR-004000l05

IN THE SUPREME COURT OF THE NORTHWEST TERRITORIES
IN THE MATTER OF:

HER MAJESTY THE QUEEN
      - v -
RUSSELL MICHAEL SIKYEA

Transcript of the Oral Reasons for Sentence by The Honourable Justice V. A. Schuler, sitting in Hay River, in the Northwest Territories, on the 11th day of August, A.D., 2005.

APPEARANCES:

Mr. J. Burke: Counsel for the Crown

Mr. L. Sebert: Counsel for the Defence

 THE COURT: I will now impose sentence on  Mr. Sikyea, who was found guilty yesterday by the jury of sexual assault. What I am going to do in giving my reasons is I will refer to the victim as “the victim” rather than by name, simply so that her name is not published, because these reasons obviously may be published in the normal course. So I want her to understand that that is why I am simply calling her “the victim” rather than using her name.
  The jury, obviously, was not satisfied beyond a reasonable doubt that Mr. Sikyea broke and entered into the victim's residence. I do not think anything in particular turns on that. Obviously the jury was satisfied beyond a reasonable doubt that Mr. Sikyea did sexually assault her as she described.
  Briefly, therefore, for purposes of these  reasons, the facts that were before the jury and that the jury obviously accepted were that Mr. Sikyea somehow came to be in the victim's home in Fort Smith. There was no prior relationship and no connection between them. He pulled her from her bed where she was sleeping beside her boyfriend, got her on to the floor, and had sexual intercourse with her as she was waking up. She said in her evidence that he penetrated her twice. She, as she was waking up, realized that he was not her boyfriend, she jumped up,  she yelled at him, he ran away, and was found and
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arrested not too long after that.  Constable Patterson testified that when he arrived on the scene the victim was distraught, very upset, and seemed somewhat traumatized. The victim has, in this case, read her victim impact statement here in court, and sadly it reflects the feelings similar to what other victims of sexual assault frequently tell the Court. She described a change from being outgoing and relaxed before the sexual assault, to afterwards being worried about being attacked again, being afraid, and feeling unsafe in her own home, having nightmares and not trusting
people.
  And also what is sometimes overlooked or perhaps just not noted in cases like this, a crime like this affects others close to the victim as well; in this case her boyfriend, who from what she said worries too about whether they are safe in their home, and her ten-year-old daughter, who worries about whether something like this could happen to her. All of that, of course, in turn has an affect on the victim herself, causing more pain to her.
  It has been noted over and over again that this type of offence, sexual assault on a victim who is sleeping or in some cases passed out, is very  prevalent in the Northwest Territories, perhaps more so than elsewhere in Canada. I do not know whether
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there are statistics that reflect on that, but I can say that this type of sexual assault is probably the
kind that most frequently comes before this Court. In this case, as it is in others, the sexual assault is a gross violation of the victim's person, her privacy, her sexual integrity.
  Mr. Sikyea is a 22-year-old Aboriginal man. I am told that his parents were alcoholics and that he was raised in part by the state, which I take to mean the child welfare authorities, and in part by his grandparents in Fort Smith. He has a grade 9 or 10 education, but his counsel notes that he does not read or write very well. He has worked over the years as a carpenter and a firefighter.
  Tammy Cumming, who was a witness at the trial, was described as his spouse, and they have two children together ages six and three, but from the evidence at trial, it did not sound like a stable or really a committed relationship, and as Mr. Sikyea's counsel has noted, their future together is uncertain. Mr. Sikyea has a criminal record beginning with convictions in Youth Court in the year 2000. On the face of it, the record does not seem all that dissimilar to the records of many other young men who come before this Court. However, the record is very
significant because of the facts underlying some of the offences.
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 There are four instances where Mr. Sikyea got into a home without permission, and in each case was found in the bedroom, or the doorway of the bedroom, of a sleeping woman or young girl. In one instance, the mischief conviction in March of 2003, the circumstances were similar to this offence in that the victim was sleeping on a mattress on the floor with her boyfriend on a couch nearby, and she awoke to find Mr. Sikyea on the mattress beside her. In none of those prior instances did Mr. Sikyea sexually assault the victim, but of course, however,  that may have been only because she did wake up. Clearly, however, it has to be of concern that Mr. Sikyea has been so often found lurking and watching around sleeping women. Mr. Sikyea has received jail time for those past  offences. In January of 2004 he received a total of nine months in jail for four offences, two of which are among those I just described, in other words going into women's bedrooms.
  From his evidence at trial, Mr. Sikyea would have been released from that sentence on July 5, 2004, and then on July 10 he is right back doing the same thing, but this time did commit a very serious sexual assault. He went farther than he had gone before.
  It is said that Mr. Sikyea has a problem with  alcohol and drugs, and clearly he was using alcohol
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and drugs on this particular occasion. It seems to me  that if he has a problem with alcohol and drugs, he should have learned by now that he commits crimes, and in particular the type of crime I have described, going into women's bedrooms, when he is under the influence, and that he should not take alcohol or drugs knowing that that is the type of behavior it leads to.
  In any event, in my view, alcohol and drugs cannot be an excuse, obviously, for what happened on this occasion, and I am not sure in the circumstances that they can really be said to be an explanation.  It seems to me that this continued behavior indicates something much more deep than just the use of alcohol and drugs.
  It is clear that Mr. Sikyea has not learned from the previous convictions and sentences. That means that deterring him, stopping him from doing this again, has to be a priority. It has to be a priority so that women in Fort Smith, or any other community where he may live, are protected from Mr. Sikyea. I note as well, in looking at Mr. Sikyea's record, that it contains a number of breaches of undertakings, probation, a conviction for failing to appear, two
convictions for escaping lawful custody, all of which suggest that Mr. Sikyea has no regard for the court process, for the rules that we all have to live by in
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society.
  Denunciation and deterrence, in other words denunciation of this crime as something that society rejects and looks down on, and deterrence of other people in the hope that they will not commit similar offences, have to be significant factors with sexual assault, and it has been noted many times by the Court that they are significant factors. But in my view, looking at this case, perhaps the more significant factor is protecting people, especially women, from Mr. Sikyea.
  I do take into account that he is Aboriginal, as the Criminal Code says that I must, but no systemic factors have been identified that would make that a significant factor on sentence or explain why he is here before the Court today. It seems to me that Mr. Sikyea has a problem, and he needs to have that problem dealt with very soon.
  Mr. Sikyea is not to be punished or more harshly treated for exercising his right to a jury trial. The fact that he did that simply means that he does not get the mitigation of a guilty plea. But I do note that there is no indication of any remorse on his part.
  I take into account the ten months that Mr. Sikyea has spent in pre-trial custody. Pre-trial
custody is frequently given double credit, as the
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Supreme Court of Canada has said in the Wust case is appropriate, so I will credit it that way.   A sentence in the three- to four-year range would be appropriate for a first offender in a case like this. Although Mr. Sikyea does not have a prior sexual assault on his record, he does have a related record, and for the reasons I have also referred to that record is of great concern. Stand up please, Mr. Sikyea.
  In my view, in all the circumstances, a jail sentence of five years is appropriate in this case.  will credit the 20 months against that, which means that the sentence I impose today is 40 months; in other words, three years and four months.
  Now, Mr. Sikyea, that is a long sentence. You had better do a lot of thinking while you are serving this sentence, because if you continue in this behavior, going into women's homes, sexually assaulting women, then I would not be surprised if the Crown brought an application to have you declared a dangerous offender or a long-term offender, and you could be looking at spending the rest of your life in jail. So if it has not somehow sunk in that you cannot do this, it had better sink in now. I hope you understand that and I hope you will do some thinking about that. You can have a seat.
  I understand that the correctional authorities do
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generally keep Northern inmates here in the Northwest Territories, even on a penitentiary sentence, but I will nevertheless direct that the warrant be endorsed  with the recommendation that Mr. Sikyea be permitted to serve his time in the Northwest Territories. I am also going to direct that the warrant be endorsed with a recommendation that a psychological assessment be
performed and that he be given access to counselling as a sexual offender.
  In the circumstances the victim surcharge will be waived. There will be a firearm prohibition order, which is mandatory in a case like this. It will commence today and expire ten years from his release  from imprisonment. Does he need time to surrender any firearms?
MR .SEBERT: No, he does not.
THE COURT: All right. The term will just be that any such items be surrendered immediately to the RCMP.
   I have looked at the sections of the Criminal Code, and I note that this is a designated offence. So under Section 490.012 of the Criminal Code, I order that Mr. Sikyea comply with the provisions of the Sexual Offender Information Registration Act for a period of 20 years. Now, have i overlooked anything?
MR.BURKE: Not in the Crown's view, Your Honour.
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 MR. SEBERT:  No, Your Honour.
 THE COURT:  All right. Thank you very much, counsel, for your presentation of the case, and my thanks to everyone involved with the court proceedings. We will close court.

 Certified correct to the best
 of my skill and ability.

Joel Bowker CSR(A)
Court Reporter
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