Supreme Court

                R. v. Tsetta, 2006 NWTSC 14         S-1-CR-2005000108



                IN THE SUPREME COURT OF THE NORTHWEST TERRITORIES



                IN THE MATTER OF:







                              HER MAJESTY THE QUEEN



                                      - and -



                                 LEON JONAS TSETTA



                _____________________________________________________

                Transcript of the Oral Reasons for Sentence delivered

                by the Honourable Justice V.A. Schuler, sitting at

                Yellowknife, in the Northwest Territories, on March

                15th, A.D. 2006.

                _____________________________________________________







                APPEARANCES:

                Mr. B. Hubley:              Counsel for the Crown

                Ms. P. Taylor:              Counsel for the Accused

            (Charges under s. 267(b), 733.1(1), 145(3) Criminal Code)





  1     In the matter of Leon Jonas Tsetta, last week Mr. Tsetta entered guilty pleas to three charges that he did on or about August 8th, 2005, here in Yellowknife, commit an assault causing bodily harm on Grace Landry; that he did fail without reasonable excuse to comply with a probation order by failing to keep the peace and be of good behaviour; and that he did fail without lawful excuse to comply with a condition of an undertaking, that condition being to keep the peace and be of good behaviour. The charges all arise out of the same set of circumstances.

2     The facts that have been related to me are that on August 8, 2005 Mr. Tsetta and the victim, his common-law spouse, were at their residence here in Yellowknife. They argued and it became physical. I am not sure whether that means they engaged in a physical fight together or that he assaulted the victim. But, in any event, at some point he did assault her by choking her to the point that she lost consciousness. He sat on her and punched her on the left side of her face fracturing her jaw. So those are the facts that give rise to the assault causing bodily harm for which he has now been convicted.

3     Mr. Tsetta had been placed on probation in September, 2004, so his actions amounted to a breach of that probation by failing to keep the peace and be of good behaviour. In January, 2005 he had been placed on an undertaking with respect to another set of charges, so his actions on August 8 amount also to a breach of that undertaking by failing to keep the peace and be of good behaviour.

4     The assault itself in this case is a very serious one. Choking to the point of unconsciousness and fracturing the victim's jaw indicate that it was a lot of force that was used against her. There is no evidence that Mr. Tsetta was intoxicated -- not that that would be an excuse -- but the evidence that is before me indicates that these were deliberate actions on his part, apparently arising from anger, and that he simply did not assert any control over either his actions or his emotions. It is also, obviously, a situation of breach of trust because of the spousal relationship.

5     The breaches are also serious because he was on probation for another assault, a common assault, on the same victim, and he was on an undertaking for allegations of other offences of violence, assault with a weapon and threats to cause bodily harm, on the same victim and her daughter. So he would have been on that undertaking pending trial on those charges, but neither that nor the fact that he was on probation for assaulting the victim on a previous occasion deterred him.

6     It seems to me, then, that I have to regard this as an example of a complete disregard of the past sentence and the promises that he gave to the court in his undertaking. And I have to say that I do find that of great concern, because this is not, as we often see, a case where in a haze of alcohol someone does something that they might not have done when they were sober. I don't have evidence that he was in a haze of alcohol. So, again, it seems to me that there is just a deliberate disregard for his situation.

7     Mr. Tsetta acknowledges in the letter that he wrote that, "In the moment of my anger I had no sense of dealing with my emotions properly." So he seems to acknowledge that he simply wasn't dealing with his emotions, wasn't controlling his emotions.

8     Mr. Tsetta is 36 years old. From the information that has been provided in his letter and the letter of Ms. Crapeau I accept that he comes from a difficult family background. It is also clear that people do speak highly of him regarding his work and his volunteer activities.

9     For example, that is reflected in the evidence that I heard from Mr. Cheezie, and it also appears from Mr. Cheezie's evidence that Mr. Tsetta is a responsible tenant. The letter from the Tyhee NWT Corporation from July of 2005 calls him, "the most productive core sawyer we have on site." Rachel Crapeau's letter refers to him as hard working and highly committed to his duties in the community, and she also talks about how he is loyal, considerate and supportive to his brothers and sisters.

10     I note, as well, that despite having only a grade four education obtained at the age of 19, Mr. Tsetta has been able to obtain employment; for example, the employment with Diavik that was referred to.

11     So it is hard to reconcile all of this with the other Leon Tsetta who assaults his spouse and certainly on this particular occasion that I am dealing with today brutally assaulted her.

12     Mr. Tsetta does have a criminal record. Since 1991 he has accumulated several convictions for offences of violence and offences of not obeying court orders. There is a gap in the record in the mid-1990s after he would have served the sentence for armed robbery, but I think that is overshadowed by the continued pattern of assaults on his spouse in 2004 and 2005.

13     There is no evidence before me in this case about the impact of the assault on the victim or how much or for how long she required medical treatment, but clearly a fractured jaw is a serious injury. I do not, having considered it, see any relevance to the fact that she delayed in reporting the assault. It is certainly not unusual in situations of spousal abuse, especially when it is not the first time that it has happened, for the victim to not go to the police right away, whether because of fear or intimidation or some other emotion or factor that is operating on her.

14     The Crown is asking that Mr. Tsetta be sentenced to penitentiary time. The defence is asking that he be sentenced to something less than that. I take into account that the maximum sentence for assault causing bodily harm is ten years. Certainly the cases that have been referred to indicate that significant sentences are imposed for spousal abuse, especially where there is a repeated pattern of it.

15     There are some mitigating factors in this case. Actually, there is a mitigating factor in this case, and it is a significant one, and that is the guilty pleas. Although they came on the eve of trial, they were indicated earlier for the assault causing bodily harm offence. There were other charges involved. But, in any event, the guilty pleas certainly are an indication of remorse and they, very importantly, save the victim the inevitable trauma of testifying, especially before a jury.

16     The aggravating factors in this case are, as I have mentioned, that there is a breach of trust involved. Mr. Tsetta's spouse, be it this spouse or any other spouse he may have, is entitled to look to him for protection and for love or kindness and to expect that she will not be brutally treated, as the spouse was on this occasion. The level of violence is also an aggravating factor, as is the fact that there has been repeated such behaviour toward this victim.

17     There is no pre-trial custody to take into account in this case, because, as advised by counsel, it was credited on the other charges for which Mr. Tsetta was convicted in November, 2005 and then sentenced in December, 2005.

18     The issue of considering the effect of a global sentence had Mr. Tsetta been sentenced with the other charges in December is, perhaps, a difficult one. I certainly cannot put myself in that sentencing Judge's shoes and try to determine what global sentence might have been imposed in December had the offences for which I am now sentencing Mr. Tsetta been before the court at that time. But what I will do and what I think is proper to do is to consider that the sentence that I impose today will be added onto the sentence he is already serving. So I should consider the totality, in other words, the end result of that sentence and ensure that it is a proper one.

19     The principles of sentencing in this case that are most important are, obviously, denunciation and deterrence, denouncing Mr. Tsetta's conduct, showing how society condemns this conduct and also deterring others from committing this type of offence. By that I refer in particular to the assault causing bodily harm, the type of offence in a spousal context that is far too prevalent, but, also, Mr. Tsetta himself obviously needs to be deterred, because for the last two years this has been a problem and he clearly has not been deterred by processes that have been put into effect to deal with his assaults.

20     As I alluded to earlier, it is always difficult to sentence someone who is well thought of by members of his community for some of his activities, but then commits serious and especially continuing offences and, in this case particularly, against a family member.

21     I have considered carefully what Mr. Tsetta has said in the letter that he wrote, and he certainly expresses good intentions about taking courses and working on his anger, his emotional difficulties. Like many people who come before this court, I think it is probably not so hard for Mr. Tsetta to now acknowledge his problems, to say that he is taking responsibility when he is involved in programs and he has people who are working with him.

22     But the point is, Mr. Tsetta, that you have to act on those things when you are back out in the community, and it is only you who decides whether you just forget all these things and go ahead and beat up your wife or you remember those things and you keep in mind that this is something that no society accepts. It is completely contrary to the traditions of any society.

23     It seems to me at the age of 36, if you continue this way, you are just going to end up spending more and more and more time in jail, and I am sure you don't want that. I am sure you don't want to spend your middle age sitting in a jail cell when you could be out hunting or working or doing other things. So that is something that you have to keep in mind and it is something that only you can control.

24     I have considered all the factors that I have referred to, and I will just reiterate that I have that given considerable credit to the guilty plea. I have considered the fact that Mr. Tsetta is now serving a sentence of nine months' imprisonment, which was the balance left after his remand time was credited.

25     Stand up, please, Mr. Tsetta. On count 3 of the indictment, which is the assault causing bodily harm, I sentence you to 16 months consecutive to the sentence that you are now serving. On count 4, which is the breach of probation, I sentence you to two months consecutive, and on count 5, the breach of undertaking, two months consecutive. So that is a total sentence of 20 months, all of which will be consecutive to the time that you are currently serving. You can have a seat.

26     There are no other orders, then, to be imposed in light of the fact that there is already a firearm prohibition order and a DNA order and the Crown is not asking for anything further in that regard. The victim crime surcharge will be waived in the circumstances.

27     Is there anything else, counsel, that I should deal with?

28     MR. HUBLEY: Nothing from the Crown.

29     MS. TAYLOR: Nothing, Your Honour.

30     THE COURT: All right. That's fine.

31     Thank you, then, for your resolution of this case, and we will close court.

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                                     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