Supreme Court

                R. v. Green, 2007 NWTSC 22         S-1-CR-2006000038



                IN THE SUPREME COURT OF THE NORTHWEST TERRITORIES



                IN THE MATTER OF:





                              HER MAJESTY THE QUEEN



                                      - and -



                                TYLER SAMUEL GREEN



                _____________________________________________________

                Transcript of the Oral Reasons for Sentence delivered

                by the Honourable Justice L.A.M. Charbonneau, sitting

                at Tuktoyaktuk, in the Northwest Territories, on

                February 20th, A.D. 2007.

                ____________________________________________________







                APPEARANCES:

                Mr. B. Lepage:              Counsel for the Crown

                Ms. K. Payne:               Counsel for the Accused



                  (Charges under s. 249(1)(a), 268, 267(a) C.C.)





       Official Court Reporters





1  THE COURT: Tyler Green was convicted this afternoon after a trial of three criminal charges, all stemming from an incident that occurred on December 9th, 2005.  Mr. Green was convicted of driving a motor vehicle in a manner dangerous to the public, he was convicted of an aggravated assault by wounding Diamond Klengenberg and of an assault with a knife, again, against Diamond Klengenberg.

2  I referred to the evidence of the trial a little bit earlier today in delivering my reasons for convicting Mr. Green, and I will not refer to everything in detail again, but, for the record, I will just briefly summarize the facts for which Mr. Green has now been convicted.

3  As I have said already, these events happened on the 9th of December, 2005, just over a year ago.  Diamond Klengenberg, in the early morning hours of that date, went to the house of Gale Jacobson here in Tuktoyaktuk.  A short time after he got there, Mr. Green came to the house for, really, an unknown reason, became rowdy and upset, got a pocket knife out and started waving it at Mr. Klengenberg.  He eventually stabbed him on the side as well as on his wrist.  The stab on the wrist happened as Mr. Klengenberg was trying to defend himself.

4  The evidence was also that Mr. Green made certain threats to Mr. Klengenberg as he was doing this.  Mr. Klengenberg ran to another part of the house, hoping to be able to leap through a window, but he was not able to do that.  He hid in the bathroom, and Mr. Green continued trying to attack him, stabbing at the door.  Eventually, when another person came to the house, Mr. Klengenberg was able to leave, but that was not the end of the incident, because Mr. Green then got on a snow machine and chased Mr. Klengenberg trying to, essentially, run him over.  Mr. Klengenberg had to hide behind a pole on the side of the road and was eventually able to run to another house where he was able to call the police.

5  There is evidence before the Court that the cut to Mr. Klengenberg's wrist was about one centimetre long, although it did not damage any nerves.  The cut to his side was about two centimetres long.  The doctor measured it up to six or seven centimetres deep.  It stopped there.  The RCMP officer who testified at the trial said that at the nursing station the nursing staff observed that the cut was possibly as deep as nine centimetres.

6  It does not really matter how many centimetres the cut was at this point.  It is clear that this was a serious injury.  It is truly a matter of pure luck that the Court did not hear this matter dealing with a homicide.  Mr. Lepage has referred to other cases from this region and, indeed, in this jurisdiction where this very type of incident has led, unfortunately, to the victim of the assault dying, and everybody in this case is very lucky that this was not what happened in this case.

7  Mr. Green has a record, which has been filed as an exhibit.  It is a relatively lengthy record, although the entries on that record are not for crimes of violence.  I do note that in 2002 he received a significant jail term of 23 months' imprisonment on an offence of break and enter and commit an indictable offence, but I do not know what indictable offence was committed at that time.  I have been told that Mr. Green's prior convictions are all for property related matters, but certainly that was a significant sentence that he received in 2002, a sentence very close to the penitentiary range.

8  I am bound to consider all the principles of sentencing in deciding what a fit sentence would be for these offences, and I will not read them out loud, but I have considered the principles set out in section 718, 718.1, 718.2 of the Criminal Code.  I will say simply that - and I think both counsel agree on this - deterrence and denunciation are very important sentencing principles in a case like this where violence is used and serious injuries are inflicted on another person.

9  I have to recognize also, however, that Mr. Green is still a very young man, and I do not think anyone can or should lose sight of the principle of rehabilitation in trying to arrive at a fit sentence.  It is up to Mr. Green to decide whether this will be a turning point in his life.  I have heard from his lawyer, and I believe that he has taken certain positive steps recently.

10  The Court knows it is not always easy to turn things around, but it is my sincere hope that Mr. Green will use this, all these unfortunate events, as a turning point and that in the future he will pursue his goals and that he will become known for his skills as a trades person, his talents, anything good he might do for his family or his community, and that he will no longer be known because he appears before the courts.

11  There are specific issues that have been raised that I must now address.  The first is an issue that was raised by Mr. Green's counsel about whether the principle of double jeopardy, sometimes referred to as the Kienapple principle,  applies in this case and, if so, what I should do as a result.  My understanding of that legal principle is that a person should not be convicted for two separate offences if the legal elements of the two are the same and if the underlying facts that support the convictions are the same.

12  In this case, I accept defence's submission that the underlying facts or evidence alleged in support of the two offences are the same, but I do not agree that the legal principles are the same, because the assault with a weapon charge includes an element of use of a weapon; whereas the aggravated assault charge does not necessarily include the use of a weapon.  It certainly does not necessarily include the use of a knife and is particularized in this case as an aggravated assault by wounding.

13  But, having said that, I am certainly in agreement that this whole incident was a continuing incident.  I think it is appropriate,  certainly, to take that into account in examining the totality principle and whether it is appropriate to impose concurrent sentences.  I find that it is appropriate for the sentences on the aggravated assault and the assault with a weapon certainly to be concurrent for that reason.

14  Defence counsel has raised the fact of how that might be interpreted in the future and the possibility that this might have been an example of overcharging.  I do not really want to comment on the issue of overcharging.  It is not the Court's role.  I know that in some instances the addition of a charge is sometimes based on the fact that part of what is alleged to have happened is not an included offence in the main charge.  So in this case assault with a knife would not have been an included offence on the           aggravated assault charge, and that may be why that charge is there.

15  But, in any event, as I have already said, I agree with the submission that it is important to keep in mind that these were closely connected.  I hope that by imposing a concurrent sentence it will clearly signal to future courts, although I really sincerely hope other no court will ever have to sentence Mr. Green again, but I hope that the imposition of concurrent sentences will signal that this all flowed from the same incident.

16  The next issue I have to consider is the defence's request for the Court to consider the imposition of a conditional sentence.  I think defence counsel presented that request in a fairly realistic way in the sense that she acknowledged that there were difficulties with that request.  I have considered the request.  Even apart from the question of what is the appropriate range for these offences, when I look at section 742.1 of the Criminal Code, it talks about when the Court can impose a conditional sentence.  In order to do so, I would have to be satisfied that serving the sentence in the community would not endanger the safety of the community and would be consistent with the fundamental purpose and principles of sentencing.

17  In this case, I cannot ignore that Mr. Green's criminal record includes a number of convictions for failure to comply with court orders.  I cannot ignore the fact that he has been before the courts many times, I am sure has heard many times from Judges that he should stop committing offences, and he has been before the courts several times.  That, combined with the very serious nature of these offences and the importance of deterrence and denunciation in this case, has led me to the conclusion that a conditional sentence would not be appropriate in the circumstances of this case, bearing in mind that this was an unprovoked, really unexplainable assault that appears to have been at least in part fuelled by alcohol, and that Mr. Green has acknowledged that he has an alcohol problem.

18  Any Court imposing sentence has to consider the circumstances of the offence, the circumstances of the offender.  The aggravating factors with respect to this offence, apart from the record, to the extent that it is somewhat related to driving offences, but the main aggravating factors are that this was an unprovoked assault and that the conduct was persistent.  It is very clear from the brief summary of the facts that I have just laid out that Mr. Klengenberg made various attempts to get away from the situation and that Mr. Green was quite persistent in his efforts to harm him.

19  The use of a potentially lethal weapon is also a serious factor for the Court to consider. Crimes of violence are often labelled as serious, but, obviously, any time a weapon is introduced it simply escalates the risk and it escalates, in my view, the blameworthiness of the offender.

20  I have considered whether there are mitigating factors in this case, and I really do not think there are many, at least as far as the crime is concerned.  Now, that does not mean that I do not think anything positive can be said about Mr. Green.  As I have said, I do accept that he has made these recent efforts and that he sincerely wants to change the path that he is on.  He cannot and should not be punished for having had a trial.  It was his right to have a trial.  All it means is that he cannot benefit from the mitigating effect of a guilty plea, but that is where it stops, in my view.

21  Assessing what the proper range is for any given offence is a bit of an elusive concept sometimes.  An attack with a knife is always serious.  Unfortunately, it is not a unique or rare occurrence in this jurisdiction.  Crown counsel has referred to the case of R. v. Itsi and has asked me to take into consideration the range found to be applicable in that case.

22  I have to say that there are a few reasons why I must be very cautious about relying to any extent on the range advanced in that case.  The first is that Mr. Itsi - and this is apparent from the decision at the trial level - had a number of prior convictions for crimes of violence, and that was obviously something that was of concern to the Court.  But, more importantly, the Court of Appeal of the NorthwestTerritories reversed the decision imposed at trial and reduced Mr. Itsi's sentence, I believe to a term of two years, largely because of his young age.

23  Now, there are also differences about the circumstances of the offences.  Not all of those differences are favourable to Mr. Green, because in the Itsi case there had been two groups of people that basically engaged in a fight, so it was not an unprovoked assault.  But overall, especially considering the sentence was ultimately reduced in a case that involved someone who had a record with entries for convictions for crimes of violence, I cannot really, in my respectful view, be guided by the range referred to in that case.

24  The paramount factors that I must consider, as I have already said, are deterrence and denunciation, but I must also take into account the importance of trying to support Mr. Green's rehabilitation.  Given, however, the seriousness of the injuries and the persistence of the conduct, I am unable to agree with the range advanced by defence counsel, but I am persuaded by those submissions that I should exercise as much restraint as I possibly can in sentencing Mr. Green and hope that he will take advantage of what I consider to be the Court's leniency.

25  Although he may not feel very lucky today and although whatever sentence I impose, I know, will feel like a long one to him and his family, I can only hope that it will make him realize just how serious this behaviour was.  It has been said that he has difficulty accepting that he would behave in this way, but the fact that he did should really be the most compelling reason for him to change his ways, remind himself that Mr. Klengenberg could have died, and in that sense, as I have said already, everyone involved in this case was lucky.

26  Mr. Green, it really is up to you now.  It is your decision from now on to decide whether these past years and this record that has been filed is going to end with today's date, February 20th, 2007.  Because I am sure that if you set your mind to it, you can actually use the rest of your life - and you have a lot of years ahead of you - you can use it in a productive way, and I am sure you will feel much better than you might have been in the last few years.

27  Please stand, Mr. Green.  Mr. Green, I am going to impose the following sentence for the various crimes that you have been convicted of:  On the aggravated assault, I am going to sentence you to 30 months' imprisonment.  On the assault with a knife, I am going to sentence you to 18 months' concurrent.  That means it is served at the same time.  It does not get added.  For the dangerous driving, I am going to sentence you to one year concurrent, as well.  So that means a total sentence of 30 months.  You can sit down.

28  It is not up to me, but I am going to ask the Clerk to endorse the warrant of committal with the strongest possible recommendation that you be allowed to serve your sentence here in the Northwest Territories so that you do not have to go somewhere else.  That way, maybe you can be a little bit closer to your family.

29  I do not know what programs are available in jail, but, again, it is up to you.  You do not have to sit there and just pass time.  I am sure you can work towards your upgrading efforts.  You might even be able to take some apprenticeship program.  I do not know.  But, really, once you are released from that sentence, it will really be up to you, and I hope, if I see you again, it will not be in a courtroom.

30  Now, I am also going to grant the application made by the Crown for a DNA order.  The defence has not attempted to argue otherwise. So that order will be issued.

31  I will also make an order prohibiting Mr. Green from having firearms pursuant to section 109 of the Criminal Code.  That is mandatory.  The order will be for 10 years. Mr. Lepage, I am going to include the provision referred to in section 113 of the Code permitting the Firearms Officer to issue a permit or an exemption.  I know there is a standard wording for this that I will not attempt to reproduce right now, but the exemption will be included.

32  Finally, given the evidence that I heard about the manner in which the snowmobile was driven and given the record that you have, Mr. Green, I am going to issue a driving prohibition.  Now, I am not going to give you the very maximum, which is three years, but I have to give you something fairly lengthy, given your history of having those types of convictions or related convictions.  So that will be for two and a half years, but in addition to your jail term,  obviously.

33  So that means that for a while after you are released you will not be able to drive motor vehicles.  I know that this will be difficult and inconvenient and may cause you problems.  You may have to take a lot of cabs if you go back to school in Inuvik and you may have to get rides, but hopefully, again, that will be the last time that a Court will have to take the privilege of driving motor vehicles away from you.

34  In the circumstances, I am not going to impose a victim of crime surcharge, given the length of the jail term that I just imposed.  I accept that that would cause hardship to Mr. Green, so I will not make that order.

35  Have I overlooked anything?

36  MR. LEPAGE:            Not that I am aware of, Your Honour.  Thank you.

37  MS. PAYNE:             Not that I am aware of Your Honour.  Thank you.

38  THE COURT: All right.  Well, before we close court, counsel, I want to thank you both for your work and your professional handling of this case.  Madam Clerk, you can close court.

                    .....................................



                                       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