Supreme Court

PUBLICATION BAN ON COMPLAINANT/WITNESS
PURSUANT TO SECTION 486 OF THE CRIMINAL CODE

R. v. Clement 2005 NWTSC69
         Date: 20050714
Docket: S-1-CR2005000045

IN THE SUPREME COURT OF THE NORTHWEST TERRITORIES

IN THE MATTER OF:

HER MAJESTY THE QUEEN

- vs. -

PHILLIP DON CLEMENT

Transcript of the Reasons for Sentence by The Honourable Justice V.A. Schuler, at Yellowknife in the Northwest Territories, on July 14th A.D., 2005.

APPEARANCES:

Mr. D. Mahoney: Counsel for the Crown
Ms. M. Smith:  Counsel for the Accused

Charge under s. 271, s. 267(b) Criminal Code of Canada

 THE COURT:   I will now sentence Phillip Don Clement for the offences to which he has pleaded guilty. There have been guilty pleas to Counts 1 and 2 in the Indictment, Count 1 being
sexual assault and Count 2 being assault causing bodily harm, both offences having as the
victim Mr. Clement's  common-law spouse. In hearing about the events that led to these
offences, it is clear that it is really one series of events.
     For purposes of the sentencing judgment, I will just summarize briefly the facts.
     The situation apparently came about because Mr. Clement became angry at his common-law
wife when he was at home drinking. He punched her in the face four or five times, threw chairs
at her, slapped her in the face and head and when she managed to flee the residence he chased
her, grabbed her by her hair and forced her to return to it. He then hit and choked her and at one
point kneed her in the stomach. She in fact tried to help him when his foot was cut on some
glass but he continued to assault her. He demanded oral sex which she did not want to do but
complied with because she was afraid of a further beating, and he then forced sexual intercourse
on her and kicked her in the face.
     He finally passed out after these events and as a
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result of what he did to her, she was bed-ridden for two days. According to the Agreed Statement
of Facts, she had difficulty breathing and sleeping due to the soreness of her ribs. The ribs
continued to bother her for almost a month. She also suffered two black eyes as well as bruises
and swelling on her forehead, cheek,  hands, back, arms and legs.
     So the events that I have just described can be described really as nothing other than a very
serious, lengthy assault on the victim.
     It is very aggravating that these events took place in the presence of the three-year-old  child
of the accused and the victim, and even the child's protests did not stop Mr. Clement from
continuing.
     It's also aggravating, obviously, that this is a spousal assault and the Criminal Code
indicates that to be an aggravating factor.
     In terms of mitigation in this case, the accused has no criminal record so that is something
that has to be considered in his favour. He also entered his guilty pleas at a very early opportunity
and waived his right to a preliminary inquiry. The fact that he did that indicates that he is
remorseful, that he is taking responsibility for what he did. It means
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that the victim did not have to testify at all, did not have to go through the  trauma of testifying
and also the trauma of waiting for a trial, waiting for the matter to be finished.
     Also indicative of remorse is the fact that Mr. Clement has offered apologies to the victim. He
also apologized here in Court today and I also take into account that he came here to
Yellowknife from Tulita to deal with this matter instead of waiting for the Court to go to Tulita
at some future date. So I am satisfied that he has made efforts to deal with the matter, take
responsibility, and in effect take his punishment.
     There is before the Court a letter from the victim. I have read it over and it appears to me
to be a thoughtful and a considered letter. It is very supportive of Mr. Clement. The child is
obviously very important to both Mr. Clement and his common-law spouse, and she speaks very
positively about him in this letter in terms of what he is like as a father.
     But that being said, Mr. Clement, you have to realize and you should spend some time
thinking about the fact that what you did to your common-law spouse is really the worst example
that you could set for your child, and in my view
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that's something very serious. It must have been terribly traumatic for your little girl to see this
happen. It must have been very traumatic at the time. But you should also keep in mind that
children who see this sort of thing happen on a repeated basis may start to thinking that this is
normal behaviour between a husband and wife and that may mean that when your little girl
grows up that if someone does something like this to her she may think it's normal and she may
not get help for herself. So if nothing else makes you make sure that this never happens again, it
should be concern and love for your child. Don't inflict this on her, don't let her see that this is
the way that some people live. Because it's not the right way to live obviously, it's not right for a
husband to do this kind of violence to his wife.
     I accept what the victim has said in her letter, that you are a very good father but I am sure
that you realize that this is not what a very good father does.
     I take into account that Mr. Clement is 23 years old. He is still fairly young. He is from and
he lives in Tulita. He has been employed there with a camp catering company but he also
engages in traditional pursuits on the land such
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as hunting and trapping. It has been indicated that he was raised by his grandparents. It has also
been indicated that his family members have had problems with alcohol. Mr. Clement himself
indicates that he started drinking at the age of 16 and acknowledges having an anger
management problem. And certainly from his own experience, and especially the incident that
was described when he was a young child where his uncle held him hostage with a gun when he
was drinking, that experience, Mr. Clement, should teach you the reason not to drink.
     If, as has been indicated here today, you were so drunk on this occasion that you don't
clearly remember what you did, the obvious answer  is you should not drink because if you drink
and you don't remember or you drink and you become angry and you do such a terrible thing,
you can only expect that more terrible things may come out of you when you are drinking. So I
accept that this incident is out of character for you but you have got quite a lot of thinking to do
about how to make sure it never ever happens again.
     Because of Mr. Clement's youth, his lack of a criminal record, it is important that there be an
individualized disposition, that
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rehabilitation be kept in mind but denunciation and deterrence are still factors. Denunciation of
this offence as behaviour that society rejects  and condemns and deterrence of other people, those
are still important factors because of the alarming rates of spousal and sexual assault in this
jurisdiction. So I do have to consider  those as well.
     I also consider the fact that Mr. Clement is aboriginal although there are no systemic factors
that have been brought to my attention.
All of these considerations have to be blended, in effect, to arrive at a suitable sentence in the
circumstances.
     The Crown seeks a sentence of two and a half to three years; the defence seeks a sentence of
less than two years with probation with terms for community service work and counselling.
     It seems to me in considering the general range of sentences for spousal and sexual assault,
looking at the circumstances of the offence alone, certainly a sentence in the range of four years
would be within the range. Now, here, I am satisfied however that the guilty pleas are a
significant mitigating factor for the reasons that I have mentioned. And taking that into
consideration, along with Mr. Clement's
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relative youth, his lack of any record, and the positive description of him that is contained in the
letter from the victim, I believe that a sentence at the lower end of the range, notwithstanding the
aggravating factors, is justified in this case.
     I have reviewed the cases that were submitted, the Pierrot and the Vermilion cases, and while
those cases are in some ways similar and in some ways different, obviously each case has to be
dealt with on its own.
     Stand, please, Mr. Clement.
     I sentence you to a term of incarceration of two and a half years on each of the charges
concurrent, so the total sentence will be two and a half years. And the warrant will be endorsed
with a recommendation that you be permitted to serve your time in the Northwest Territories and
that you be given access to anger management and alcohol counselling.

 THE ACCUSED:     Thank you.
 THE COURT:     You can have a seat, Mr. Clement.
     There will be the mandatory DNA order in the usual terms which will commence today and -- is  it 20 years for the DNA? Actually, there is no limit on the DNA order so the DNA order is
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 mandatory, do you have the order form?
MR. MAHONEY: Yes, Your Honour, it has been signed by Ms. Smith.
 THE COURT: I will have a look at that when we finish Court and then have the clerk return it to
you.
      Under Section 109 of the Criminal Code, a firearm prohibition order is also mandatory in these circumstances so there will be one. It will commence today and it will end ten years  after Mr. Clement's release from imprisonment. Because hunting for food is an integral part of  his life and because a firearm was not used in the commission of these offences, under  Section 113 of the Criminal Code I am satisfied that in his particular circumstances Mr. Clement
 does require a firearm for sustenance and so I will authorize the chief firearms officer and the  registrar to issue the appropriate authorizations to Mr. Clement to hunt for sustenance.                           And then under Section 490.12 of the Criminal Code, for the sexual assault conviction it is mandatory that Mr. Clement comply with the Sex Offender Registry Act and an order will go to
that effect, that he comply for a period which commences today and ends 20 years hence.                               In the circumstances, I am going to waive
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 the Victim Surcharge.
     Do you want to speak to Count 3 in the Indictment?
 MR. MAHONEY: Yes, Your Honour, the Crown withdraws the remaining charge.  THE COURT: Count 3, then, will be marked withdrawn.
    Now, is there anything that I have not covered?
 MR. MAHONEY: I think that's everything, Your Honour, as far as I can tell.
 MR. SMITH: Yes, Your Honour, I think that's everything.
 THE COURT: Thank you, counsel. I will have a look at the order and then have the clerk   return it to you.
 MR. MAHONEY: Thank you.
  (ADJOURNMENT)

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


 Lois Hewitt, CSR(A) , RPR, CRR
 Court Reporter
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