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Abstract: Transcript of the oral reasons for sentence
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R. v. Antoine, 2007 NWT SC 02 S-1-CR-2006000031 IN THE SUPREME COURT OF THE NORTHWEST TERRITORIES IN THE MATTER OF: HER MAJESTY THE QUEEN - and - GERALD NEKIA ANTOINE _____________________________________________________ Transcript of the Oral Reasons for Sentence delivered by the Honourable Justice V.A. Schuler, sitting at Yellowknife, in the Northwest Territories, on January 9th, A.D. 2007. _____________________________________________________ BAN ON PUBLICATION OF COMPLAINANT/WITNESS PURSUANT TO SECTION 486 OF THE CRIMINAL CODE APPEARANCES: Ms. S. Smallwood: Counsel for the Crown Ms. K. Payne: Counsel for the Accused (Charges under s. 271, 349(1) Criminal Code) Official Court Reporters 1 THE COURT: I will now sentence Gerald 2 Nekia Antoine in this matter. Mr. Antoine is a 3 24-year-old man who has been convicted of sexual 4 assault in circumstances that, sadly, are typical 5 of many of the cases that come before this Court. 6 After a house party that he was kicked out 7 of three times, Mr. Antoine returned to the house 8 and the victim of the sexual assault, who was 9 asleep, awoke to find him having sex with her. 10 She managed to get him off her and get help. 11 When the police came to the house and found 12 Mr. Antoine, he was intoxicated but alert. There 13 was reference to him having been beaten up, but 14 it is unclear, based on what little has been said 15 about that, who beat him up, why they beat him 16 up. So, in my view, that is something that I 17 simply cannot take into account. 18 This is another example, unfortunately, of 19 so many young men - and I am sure Mr. Antoine is 20 probably one of them - young men who are fine 21 when they are not drinking, but when they drink 22 they lose all sense of self-control and all 23 respect for others. 24 This Court has said on numerous occasions 25 that to deter, to discourage others from this 26 type of behaviour and to show how society and the 27 people of the Northwest Territories condemn this Official Court Reporters 1 1 behaviour, normally a significant jail sentence 2 will be imposed. 3 In this case there are some important 4 mitigating factors. Mr. Antoine has from an 5 early stage indicated that he would plead guilty 6 if the DNA results linked him to the crime, and, 7 as a result, he waived his Preliminary Hearing. 8 He claims to have no memory of the offence. 9 The DNA results were not available until 10 December, 2006, almost exactly a year after the 11 offence. So although his guilty plea comes only 12 the week that he was to go to trial by jury in 13 Fort Simpson pursuant to his original election, 14 there is an explanation for that. 15 So I do give the guilty plea full credit, 16 especially in light of the fact that the victim 17 has never had to testify. So, in effect, 18 Mr. Antoine has saved her the difficulty, the 19 trauma of testifying. The guilty plea also 20 indicates remorse on his part, and I note that he 21 did apologize here in court. 22 The remand time that has been incurred since 23 May of 2006 will also be taken into account. I 24 do note, however, that Mr. Antoine was in remand 25 because he breached the undertaking that he was 26 originally released on. As I understand it from 27 what has been said, within only a few weeks of Official Court Reporters 2 1 his release he had breached the undertaking four 2 times by breaching the condition that he report 3 to the RCMP. While the distance that he lived 4 from the police detachment at that time made 5 reporting difficult, the way to deal with that 6 would have been to request a change in the 7 reporting condition, not to sleep in and ignore 8 it. In any event, he has been sentenced for the 9 breach. The only significance of it is in 10 relation to the credit to be given to his remand 11 time. 12 In terms of the circumstances of the remand 13 time and the disruption in his relationship with 14 his child and the family tragedies that occurred 15 while he was in remand and that he was not able 16 to deal with in a way that he would have wished, 17 although those factors, no doubt, have made his 18 remand time difficult, again, I have to bear in 19 mind that he was in remand because of his own 20 actions. I do not think that personal issues in 21 relation to remand time are necessarily as 22 significant as the fact that one does not get 23 remission time on remand time and - and I do not 24 have any real evidence in this case about it - 25 sometimes is not able to partake of programs at 26 the correctional centre. 27 There are aggravating factors in this case. Official Court Reporters 3 1 Mr. Antoine was also on probation at the time of 2 the offence. So that is an aggravating factor 3 which can be taken into account, as there is no 4 separate charge for that. It is also aggravating 5 that he was told to leave the house, but came 6 back to it. 7 I also take into account the vulnerability 8 of the victim, who was asleep and, therefore, an 9 easy target for Mr. Antoine. Although there is 10 no victim impact statement, this type of offence 11 invariably results in trauma to the victim. As I 12 have said, however, I take into account that 13 because of the way Mr. Antoine has dealt with 14 this case she has not had to testify. 15 Mr. Antoine is described as an immature 16 24-year-old who has a grade 11 education. He has 17 had work in construction and also the oil and gas 18 industry and earned his safety certificate in the 19 latter. So he obviously has some ability and 20 background that he could put to good use. Also, 21 his parents are supportive and have attended 22 court today and have helped him maintain a 23 relationship with his four-year-old daughter 24 while he has been incarcerated. So he is 25 certainly luckier than some people who come 26 before this Court who do not have such family 27 support. Official Court Reporters 4 1 I have been told that Mr. Antoine knows now 2 that he has to deal with his alcohol addiction 3 and that he has decided to maintain sobriety for 4 himself and his daughter and he has attended AA 5 meetings while incarcerated and also had the help 6 of an Elder. His efforts in that regard are 7 certainly to his credit, but it is also easier 8 said than done, and when there are controls on a 9 person and when someone has court coming up, 10 sometimes they make promises or say they will do 11 things, but the real test is when they are back 12 out in the community. 13 I am sure, Mr. Antoine, that you want to do 14 all those things. You are now 24 years old. You 15 have a child. I cannot ignore the fact that you 16 do have a very long record, and I am sure that 17 over the last eight years you have been told 18 repeatedly and have realized repeatedly that you 19 have to stop drinking. You have to learn to 20 exercise control over your actions, and only you 21 can do that. 22 The record has to be taken into account. 23 The main concern that it raises are the five 24 assaults over a period from 1998 to 2005 which 25 are related, of course, to the offence for which 26 I am about to sentence Mr. Antoine, because 27 sexual assault is considered an offence of Official Court Reporters 5 1 violence even if there was not other violence 2 involved beyond the sexual assault itself. 3 Now, of course, with the conviction for 4 sexual assault Mr. Antoine will have an even more 5 serious charge on his record, and, if he comes 6 back to court, can only expect to be looking at 7 sentences of even longer duration for similar 8 types of offences. I would say, as well, that 9 obviously the sentence in this case has to seek 10 to deter Mr. Antoine, to stop him from engaging 11 in this type of behaviour in the future. 12 Counsel agree that the range for a sexual 13 assault where there is a guilty plea is two to 14 three years in this jurisdiction, and I think 15 that, generally speaking, they are correct about 16 that. 17 Would you stand up, please, Mr. Antoine. In 18 considering all of the factors, because of the 19 guilty plea mainly and notwithstanding the 20 record, in my view a sentence of two and a half 21 years is appropriate in this case. I will credit 22 the remand time, for the reasons that I have 23 referred to, as one year. So the resulting 24 sentence from today is 18 months in jail. 25 I have not heard any submissions to the 26 contrary, and it does seem appropriate, so there 27 will be a firearm prohibition order which will Official Court Reporters 6 1 begin today and continue for a period of ten 2 years after Mr. Antoine's release from 3 imprisonment, and any such items are to be 4 surrendered to the RCMP forthwith. Pursuant to 5 section 490.012 of the Criminal Code, Mr. Antoine 6 will register with the Sex Offender Registry and 7 report pursuant to the terms of that registration 8 for a period of 20 years. The victim of crime 9 surcharge will be waived in the circumstances. 10 You can have a seat, Mr. Antoine. Is there 11 anything I have overlooked? 12 MS. SMALLWOOD: I don't believe so, Your 13 Honour. 14 MS. PAYNE: Your Honour, just if there 15 could be a recommendation that he be permitted to 16 spend his remaining custodial time in the 17 Northwest Territories at the North Slave 18 Correctional Centre, because -- 19 THE COURT: He would in any event, would 20 he not, because the sentence is 18 months at this 21 point? 22 MS. PAYNE: I'm not sure how it works with 23 Corrections, because the sentence -- that may be. 24 I am just concerned that if he is -- if it is 25 looked at globally, he would have received a 26 federal term. 27 THE COURT: All right. Is there anything Official Court Reporters 7 1 from the Crown on that? 2 MS. SMALLWOOD: I have no submissions on that, 3 Your Honour. 4 THE COURT: All right. Well, I think it 5 is probably not necessary, but, in any event, I 6 don't have any difficulty with it. There will be 7 a recommendation on the warrant that he be 8 permitted to serve his time in the Northwest 9 Territories. 10 MS. PAYNE: Thank you. 11 THE COURT: All right. Thank you very 12 much, counsel, for your disposition of the case. 13 We will close court. 14 ..................................... 15 16 17 Certified to be a true and accurate transcript pursuant 18 to Rules 723 and 724 of the Supreme Court Rules. 19 20 ______________________________ 21 Jill MacDonald, CSR(A), RPR 22 Court Reporter 23 24 25 26 27 Official Court Reporters 8
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