Supreme Court

R. v. Bird, 2005 NWTSC 67
Date: 20050802
Docket: S-1-CR-2002000026

IN THE SUPREME COURT OF THE NORTHWEST TERRITORIES

IN THE MATTER OF:


HER MAJESTY THE QUEEN


- v -


TOMMY CHARLES BIRD


Transcript of the Reasons for Sentence delivered by The Honourable Justice J. Z. Vertes, in Inuvik, in the Northwest Territories, on the 28th day of July, A.D. 2005.


APPEARANCES:

Mr. S. Hinkley:   Counsel on behalf of the Crown

Mr. T. Boyd:   Counsel on behalf of the Accused


Charge under s. 271 C.C.


Ban on Publication of identity of Complainant/ Witness Pursuant to Section 486 of the Criminal Code.


THE COURT:   The accused was convicted, after trial before a local jury, of the offence of sexual assault.

The facts of the offence are straightforward. The complainant, 18 years old at the time of the offence, testified that she was drinking alcohol with some friends. She left with a fellow named Darren to go back to his place to get some beer to take back to the party. Darren was staying in a staff house here in Inuvik provided by his employer. The complainant could not remember anything from the time she got into a taxi to go to Darren's place until she woke up the following morning, lying in Darren's bed, with the accused on top of her, “pulling out of her” as she said, and touching her. She was half-naked. She pushed the accused off and then located Darren in another room in bed with another woman. She woke him up and then he took her away from there. The complainant did not report this assault until six days later when she went to the local hospital. Photographs taken at that time showed bruises which the complainant said she did not have prior to the assault.

The complainant had not seen the accused the night before at the party where she was drinking, but she had met him some months before at another

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party and knew who he was.

The accused testified and denied that this incident occurred at all. He denied seeing the complainant or assaulting her. He too, however, lived at the same staff house as Darren at the time.

The jury deliberated for approximately six hours. The evidence, consisting only of the testimony of the complainant and the accused, took less than two hours. So the jury obviously looked at it very carefully.

I am satisfied that, by returning a verdict of guilty, the jury accepted what the complainant said as the true facts of what occurred that night.

This set of facts reveals what was described by Crown counsel as an opportunistic assault, one whereby the accused obviously took advantage of a defenceless person.

Defence counsel described the incident as an aberration, a one-time incident out of character for the accused. He has a point.

The accused is now 34 years old. He grew up in Alberta. He is certified as a heavy-equipment operator and has a history of steady employment. There is no doubt that he has been and can be a contributing member of society. But this one

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incident, aberration as it may be, was a serious and violent invasion of another person's dignity and physical integrity. He took advantage of a defenceless person for his own momentary gratification. That is a serious crime and it is for that crime, not because of the type of person that he is, for which he is being punished.

The accused has an unrelated criminal record. He has been convicted, since 1989, of four charges of impaired driving and six charges of failing to appear in court. While this record is unrelated it does reveal, however, a recurring problem in abiding by the standards set by society. And, one could hardly say that impaired driving is not a danger to the community.

The accused has spent seven and a half months in pre-trial custody and I must give him credit for that. But the remand time requires some explanation.

This offence occurred in September 2001. The accused was arrested and released. He made his first appearance in January 2002 at which time the preliminary hearing was set for February 2002. The accused failed to appear in February and the preliminary hearing proceeded in his absence. A warrant was issued but the accused was not apprehended until November 2004. It

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turns out that for part of that time the accused was attending a community college in Alberta. And when he was eventually apprehended, he was apprehended here in Inuvik. Why it took almost three years to apprehend the accused in these circumstances is inexplicable. In any event, the accused was detained in custody. He then was convicted of failing to attend court and sentenced to 45 days in jail. Of that total time in custody since his re-arrest, seven and a half months were taken up by simply being on remand.

I will credit the seven and a half months at the customary rate of two for one, resulting in the equivalent of 15 months. I recognize that in some cases the credit could be less since the reason for his being on remand was his failure to appear at his preliminary hearing. However, in this case, part of the remand time was also due to a Crown request for an adjournment of the original trial date set last February.

The issue I must decide of course is the appropriate sentence for this crime. Sentencing is always an individual exercise, taking into account the particular circumstances of the offence and the circumstances of the offender. Defence counsel has referred to a number of cases and argued that the appropriate sentence would be

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one of less than two years to be served conditionally in the community. I respectfully disagree.

In my opinion, the circumstances of this offence are deserving of a penitentiary sentence. That, by itself, takes this sentence out of consideration for a conditional sentence. And, by reason of the recent Supreme Court of Canada decision in Fice, any credit for pre-trial custody does not qualify to bring the sentence within the statutory requirements for a conditional sentence.

I say the circumstances of this offence deserve a penitentiary sentence for the following reasons. It is a case of serious bodily interference (intercourse); the victim was defenceless, being asleep or passed out from excessive alcohol consumption; and, the relatively young age of the victim (18 at the time) compared to the relative maturity of the offender (30 years old at the time)

I also do not ignore the prevalence of this type of offence in the Northwest Territories, a factor noted by the Northwest Territories Court of Appeal in its recently released decision in Regina v. Khatib, 2005 NWTCA 03, where the court said, in reference to a case with similar

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circumstances, that, in any jurisdiction, this crime would attract a significant sentence unless there were some factor out of the ordinary, such as reduced mental capacity or great youth and immaturity. The court also said (at paragraph 41):

“This particular scenario and type of sexual assault is extremely common in this Territory, much more than in southern Canada. So it needs general deterrence, denunciation, and promotion of a sense of responsibility.”

I have not ignored the accused's personal circumstances but, apart from the fact that this act seems to be out of character for him, I find no mitigating circumstances.

I have also considered, as I must, the circumstances of the accused as an aboriginal offender. He is a member of the Paul First Nation of Alberta. I recognize that there are wide-spread systemic factors of a general nature affecting all aboriginal Canadians that have placed them at a disadvantage. However, in this case, I have not been told of any systemic factors specific to this accused that may have played a part in bringing him before this court.

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Quite the contrary, he appears to have had a stable upbringing; he has family support; and he has valuable and useful skills.

For all of these reasons, I have decided that an appropriate sentence for this crime would be one of three years' incarceration. Of that, I credit the period of 15 months for pre-trial custody, and I therefore sentence the accused to a total term of imprisonment of 21 months in custody.

In addition, since a conviction for sexual assault brings in to play various mandatory terms of the Criminal Code, and in the absence of information and evidence to suggest that the making of these orders would be grossly disproportionate as between the interests of the accused and the interests of society, I make the following orders:

1. There will be an order requiring the accused to provide a sample for DNA analysis and submission to the DNA data bank pursuant to section 437.051 of the Criminal Code.

2. I make an order that the accused must comply with the provisions of the Sexual Offender Information Registration Act for the designated period of 20 years pursuant to section 487.012 of the Criminal Code.

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3. I make an order under the mandatory provisions of section 109 of the Criminal Code prohibiting the accused from having in his possession any firearms, ammunition, or explosives for a period of no less than ten years from the date of his release from his sentence of imprisonment, ending ten years from that date.

I will rely on Crown counsel to provide the necessary and appropriate formal orders for entry on the court record.

Under the circumstances, there will be no victim of crime fine surcharge.

Is there anything I've neglected, counsel?

MR. HINKLEY:  No, sir.

MR. BOYD:   No, sir.

THE COURT:   Thank you for your submissions. Court is closed.


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

Annette Wright, RPR, CSR(A)
Court Reporter

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