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Abstract: Transcript of the Oral Reasons for Sentence
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R. v. Aleekuk, 2010 NWTSC 71 S-1-CR-2010-000091 IN THE SUPREME COURT OF THE NORTHWEST TERRITORIES IN THE MATTER OF: HER MAJESTY THE QUEEN - and - PATRICK LLOYD ALEEKUK _____________________________________________________ Transcript of the Oral Reasons for Sentence delivered by the Honourable Justice V.A. Schuler, sitting at Yellowknife, in the Northwest Territories, on August 26th, A.D. 2010. _____________________________________________________ BAN ON PUBLICATION OF COMPLAINANT/WITNESS PURSUANT TO SECTION 486.4 OF THE CRIMINAL CODE APPEARANCES: Mr. D. Praught: Counsel for the Crown Mr. S. Shabala: Counsel for the Accused (Charge under s. 271 Criminal Code) Official Court Reporters 1 THE COURT: Good afternoon. Do counsel 2 have anything they wish to raise before I 3 sentence Mr. Aleekuk? 4 MR. SHABALA: Nothing further from the 5 Defence, Your Honour. 6 MR. PRAUGHT: No, Your Honour. 7 THE COURT: All right. Before I do 8 sentence Mr. Aleekuk, I want to remind everyone 9 present that there is a ban in place on 10 publication or broadcast of the name of the 11 victim and any information that might identify 12 her. 13 Patrick Lloyd Willard Aleekuk has pleaded 14 guilty to and has been convicted of sexual 15 assault. The facts that he has admitted are that 16 in January, 2009 the victim had travelled from 17 Inuvik to Tuktoyaktuk to attend the funeral of a 18 friend, who was also an aunt of Mr. Aleekuk. 19 Both Mr. Aleekuk and the victim attended a party 20 and became intoxicated. While the victim was 21 passed out on a couch, Mr. Aleekuk had sexual 22 intercourse with her. He did not use a condom. 23 Although the victim has no memory of what 24 happened, it appears that when she came to and 25 seeing that the clothing on her lower body had 26 been removed, she realized that she had been 27 sexually assaulted and, presumably, soon Official Court Reporters 1 1 thereafter went to the police and/or hospital 2 where DNA samples were taken, which were, many 3 months later, matched to the DNA of Mr. Aleekuk. 4 On the evening in question when the victim left 5 the house where she had been assaulted, Mr. 6 Aleekuk was standing outside having a cigarette. 7 The Agreed Statement of Facts indicates that 8 the victim did not know Mr. Aleekuk, although it 9 appears that they may have grown up in the same 10 community as young children. 11 The victim, who is in her late 40s, has been 12 traumatized by the sexual assault, as is clear 13 from her victim impact statement and the report 14 of her interview with the author of the 15 pre-sentence report. She has bad dreams about 16 Mr. Aleekuk and wakes up afraid. She thinks 17 about what happened daily and continually washes 18 her hands or showers in hot water to try to rid 19 herself of a dirty feeling, so much so that she 20 sometimes burns herself with the water. 21 She is ashamed and does not want people to 22 know what happened. She does not go out or work. 23 Her relationship with her spouse has also been 24 affected. In her own words, she feels that she 25 is going crazy from what happened and she is 26 planning to seek medical advice. 27 Sadly, these are consequences that are not Official Court Reporters 2 1 unusual for victims of sexual assault, and I hope 2 that the Victim Assistance Program will provide 3 her with information and assistance about what 4 counselling and help is available for her. I 5 also hope that the conclusion of the court 6 proceedings will mean one less obstacle for the 7 victim to face in dealing with this terrible 8 event. 9 In this case, I have the benefit of a very 10 thorough pre-sentence report. Mr. Aleekuk is 54 11 years old, an Inuvialuit man who was born and 12 raised in the Delta region of the Northwest 13 Territories. Although the circumstances of his 14 birth were difficult and not auspicious, he was 15 adopted while still an infant into a family where 16 it appears the seven adopted children were well 17 cared for and education was encouraged. However, 18 by his teens and around the time his adoptive 19 father died, Mr. Aleekuk dropped out of school 20 and started to get into trouble with the law, in 21 particular by stealing. 22 Unfortunately, his actions and behaviour 23 have resulted in him losing the support of some 24 family members; for example, the sister who 25 related that he is not allowed in her home and 26 that he does not accept responsibility for his 27 actions and blames alcohol instead. He basically Official Court Reporters 3 1 has no contact with the rest of his siblings. He 2 has been homeless from time to time. 3 Mr. Aleekuk did, in later years, upgrade his 4 education to grade nine while incarcerated. He 5 does some artwork and, according to his sister, 6 is good at it, although there is no information 7 as to whether he has tried to make a living at 8 it. 9 His work history appears to be sporadic and 10 has consisted of labour type jobs. He last 11 worked two years ago for three weeks cleaning the 12 graveyard in Tuktoyaktuk. He had a job last year 13 at the hospital in Inuvik, but was fired only 14 hours after beginning work when he was found to 15 have a locker full of shoes stolen from one of 16 the hospital wards. 17 Mr. Aleekuk has one child, who, in turn, has 18 three children of her own, but he and his 19 daughter are not close, and, indeed, she told the 20 author of the pre-sentence report that he is not 21 allowed in her home and she does not want 22 anything to do with him. 23 It is very sad when an individual has no or 24 very little contact with his or her family, but 25 it is clear from the pre-sentence report that Mr. 26 Aleekuk's own actions have resulted in this 27 situation. On the other hand, the report does Official Court Reporters 4 1 indicate that there are some people who do 2 consider Mr. Aleekuk to be a friend. 3 Mr. Aleekuk has a lengthy criminal record 4 going back to 1972 when he would have been still 5 in his teens. There are many theft related 6 offences on the record, about 24 in all, from 7 1972 to 2007. In total, there are 43 convictions 8 for various offences. The ones that have to 9 concern me the most today are the offences of 10 violence. In 1984, common assault; in 1987, 11 common assault; in 1989, a sexual assault for 12 which on appeal Mr. Aleekuk was sentenced to 13 three years' imprisonment; in 1993, common 14 assault; in 1997, a sexual assault for which he 15 was sentenced to six years' imprisonment. 16 I was not given information about the 17 circumstances of that sexual assault other than 18 it involved a home invasion, which may account, 19 at least in part, for the length of the sentence. 20 I am told that Mr. Aleekuk served the entire six 21 years of that sentence because he was not 22 cooperative and refused to accept counselling. 23 In the pre-sentence report, the author 24 relates that he indicated to her that he did not 25 wish to participate in any counselling, as he was 26 sure that he would not be involved with the court 27 system ever again. I note that Mr. Aleekuk would Official Court Reporters 5 1 have finished serving the six-year sentence in 2 2003 and he was not convicted again until 3 October, 2007 when he was convicted for theft 4 under and received a fine. So there is a 5 four-year gap in his record. Then one and a half 6 years after the theft conviction he committed the 7 sexual assault now before the Court. 8 So based on that part of the criminal 9 record, it does appear that, whether or not he 10 continued drinking, Mr. Aleekuk was able to stay 11 out of trouble for fairly lengthy periods of time 12 since serving the six-year sentence, but, 13 obviously, that did not last. 14 From the information in the pre-sentence 15 report, it is clear that Mr. Aleekuk attributes 16 his difficulties and his behaviour to alcohol and 17 that he has been abusing alcohol for many, many 18 years. He has, however, had some treatment for 19 alcohol abuse and he has expressed an interest in 20 having more. 21 I am sure that he has been told repeatedly 22 by the courts and others that he needs to stop 23 drinking, and I am also pretty sure that he has 24 promised over the years to do something about his 25 drinking. But from the circumstances of this 26 sexual assault, we see that even now in his 50s 27 he still gets intoxicated and commits a crime. Official Court Reporters 6 1 During his six-year sentence for the last sexual 2 assault he would have had both time and 3 opportunity to address his alcohol abuse, but he 4 refused the counselling he could have had. 5 The pre-sentence report quotes Mr. Aleekuk 6 as saying that he is not violent to anyone. Mr. 7 Aleekuk needs to be aware, however, that the 8 courts do consider sexual assault a crime of 9 violence. It has serious and often long-lasting 10 consequences for the person assaulted, 11 consequences that are often much harder to live 12 with than a punch or a non-sexual assault. 13 If Mr. Aleekuk listened closely to the 14 victim impact statement of his victim when it was 15 read out in court, he heard how devastating his 16 sexual assault was for his victim. The fact that 17 he has committed sexual assault three times now 18 means that he has to be regarded as a violent 19 person, a person who is dangerous to others. 20 For the crime of sexual assault, the 21 Criminal Code provides for a maximum sentence of 22 ten years' imprisonment. In this case, based 23 mainly on the guilty plea and the fact that Mr. 24 Aleekuk waived his Preliminary Hearing on the 25 date it was scheduled, the Crown seeks a sentence 26 of three to four years less any credit for remand 27 time. The Defence does not take issue with that Official Court Reporters 7 1 position. 2 There are a number of things I must consider 3 in deciding on Mr. Aleekuk's sentence. First, 4 the aggravating factors, which are as follows: 5 The victim, who was passed out, was defenceless 6 and vulnerable, which Mr. Aleekuk took advantage 7 of. As in any sexual assault, he showed 8 disregard for the victim's privacy and integrity. 9 In this case, he also showed disregard for her 10 health and well-being by not wearing a condom. 11 Second, I must consider any mitigating 12 factors. The only mitigation in this case comes 13 from the fact that Mr. Aleekuk has pleaded guilty 14 and also waived the Preliminary Inquiry. These 15 are significant circumstances that weigh in his 16 favour. It means that the victim did not have to 17 testify at all in court, which saved her from 18 further distress and embarrassment. 19 I do take note of the information in the 20 pre-sentence report suggesting that Mr. Aleekuk 21 has shown a lack of remorse. However, I think 22 Defence counsel made a good point when he said 23 that a lack of remorse may be confused with an 24 inability to express remorse due to poor 25 communication skills. I also take note of Mr. 26 Aleekuk's apology to the victim that he expressed 27 here in court. Official Court Reporters 8 1 As a result, I am not going to consider lack 2 of remorse as an aggravating factor, as I find 3 that, in any event, it is outweighed by the 4 remorse inherent in the guilty plea, which 5 ultimately means that Mr. Aleekuk is taking 6 responsibility for the terrible thing he did to 7 the victim and the trauma he has caused her. I 8 can only hope that he understands that he has 9 done something that has changed her life and 10 caused her a great deal of pain and distress. 11 I must also take into account the time that 12 Mr. Aleekuk has been in remand in pre-trial 13 custody. The DNA testing took some time to 14 complete, and so Mr. Aleekuk was not actually 15 charged with this offence until January of 2010. 16 He was arrested February 27, 2010 and has been in 17 custody since then, which is six months. Crown 18 counsel advises that the new Truth in Sentencing 19 Act does not apply in this case, so credit for 20 the remand time is within my discretion. 21 This Court has often said - and I am sure 22 that Mr. Aleekuk has heard this before - that the 23 principles, the goals of sentencing that are of 24 paramount importance in cases of sexual assault 25 are denunciation, in other words, the sentence 26 should show that society and the community reject 27 and condemn Mr. Aleekuk's behaviour; also Official Court Reporters 9 1 deterrence, meaning that the sentence should be 2 significant enough to discourage others from 3 committing sexual assault. 4 Because of Mr. Aleekuk's past record of 5 sexual assault, the sentence I impose should also 6 be aimed at discouraging him from repeating this 7 behaviour. I must also bear in mind the 8 principle of proportionality, which is that a 9 sentence should reflect the seriousness of the 10 offence and the degree of responsibility of the 11 offender. Here, the offence is very serious and 12 Mr. Aleekuk bears full responsibility, especially 13 since he has been sentenced twice before for 14 similar behaviour. 15 Also, because Mr. Aleekuk is aboriginal, 16 section 718.2(e) of the Criminal Code requires 17 that I give particular consideration to whether a 18 sanction other than imprisonment would be 19 reasonable in the circumstances. In light of Mr. 20 Aleekuk's previous record for sexual assault, his 21 inability to obey the law for many years, the 22 fact that even lengthy sentences of three and six 23 years have not stopped him, and his failure to 24 take steps to deal with his alcohol abuse, I am 25 convinced that society needs protection from Mr. 26 Aleekuk and that protection can only come from 27 separating him from society, and, therefore, no Official Court Reporters 10 1 sanction other than imprisonment is reasonable in 2 the circumstances, nor, indeed, was it suggested 3 by counsel that some other sanction should be 4 considered. 5 The position taken by the Crown is quite 6 lenient. The range suggested is at the low end 7 of the scale for a third sexual assault. In 8 fact, it is close to a range that is usually 9 considered appropriate on a first sexual assault 10 conviction. I think that, had there not been a 11 guilty plea, a sentence of six to eight years in 12 jail might be appropriate in light of Mr. 13 Aleekuk's prior record. So the question is 14 really whether the guilty plea is a sufficiently 15 mitigating factor to reduce the sentence to three 16 or four years. 17 I have already referred to the fact that the 18 guilty plea and also the waiver of the 19 Preliminary Inquiry have saved the victim the 20 trauma, embarrassment and stress of having to 21 testify. Those of us who sit in court and listen 22 to testimony about sexual assault are able to see 23 regularly how difficult the court process is for 24 witnesses, how stressful and upsetting it is for 25 them to testify and repeat yet again what 26 happened, especially in front of a jury of 12 27 people, knowing that those people are deciding Official Court Reporters 11 1 whether to believe them or not. 2 So not having to testify does benefit the 3 victim. By pleading guilty and giving up his 4 right to a trial, Mr. Aleekuk has also saved 5 considerable court time that can be allocated to 6 other cases. So the guilty plea and waiver of 7 the Preliminary Inquiry do justify a substantial 8 reduction of sentence, as was stated by Justice 9 Richard in the case of R. v. Lafferty, 2004 NWTSC 10 32. For the reasons that I have just referred 11 to, the Court wants to encourage offenders who 12 have committed an offence to plead guilty by 13 giving significant credit for a guilty plea. 14 At the same time, I have to bear in mind 15 that this type of sexual assault perpetrated on a 16 sleeping or passed out victim who cannot defend 17 herself and does not even know what is being done 18 to her is all too common in the Northwest 19 Territories. 20 I have to take into account also that Mr. 21 Aleekuk does pose a danger to the community, 22 because this is the third time he has sexually 23 assaulted someone. The fact that even in his 50s 24 he continues to disobey the law and disrespect 25 other people means, sadly, that the Court can see 26 little hope that he will change. 27 There are some ancillary orders that I must Official Court Reporters 12 1 deal with, so I will do that now. No reason has 2 been presented by Mr. Aleekuk as to why any of 3 the following orders should not be made. So I 4 first make an order that Mr. Aleekuk comply with 5 the Sex Offender Information Registry Act for a 6 period of 20 years pursuant to section 490.012 of 7 the Criminal Code. 8 Secondly, I make an order for the taking of 9 Mr. Aleekuk's DNA, if it is not already in the 10 databank, pursuant to section 487.051 of the 11 Criminal Code. 12 Third, I make an order in the usual terms 13 prohibiting Mr. Aleekuk from the possession of 14 firearms, ammunition and other items referred to 15 in section 109 of the Criminal Code for a period 16 of time that begins today and will expire 10 17 years after his release from imprisonment. 18 Stand, please, Mr. Aleekuk. Mr. Aleekuk, 19 your criminal record consists of many offences of 20 theft, and it is clear from the pre-sentence 21 report that there are people in your community 22 and in your own family who brand you as a thief. 23 Theft is one thing. Sexual assault is an even 24 more serious thing. With three sexual assaults 25 on your record now, you may find that people 26 start calling you a rapist. That is not the term 27 that is used legally for the offence of sexual Official Court Reporters 13 1 assault anymore, but that is a term that a lot of 2 people often use. 3 You should be aware that the Crown has the 4 option, if you commit another sexual assault, or 5 may have the option, of applying to have you 6 declared a dangerous or a long-term offender; in 7 other words, of asking that you be sent to prison 8 indefinitely without a definite release date. 9 You are 54 years old. You need to think 10 about how you want to spend the rest of your 11 years; whether you want to spend them in jail or 12 whether you want to find a way to live in your 13 community without committing crimes. It is up to 14 you to find a way to do that. 15 I accept the range of sentence suggested by 16 Crown counsel in the circumstances, despite it 17 being at the lower end of the scale, but, in my 18 view, this case has to come at the top of that 19 range. So although Mr. Aleekuk will be given 20 credit for the remand time, I think it has to be 21 minimal credit so as to ensure that he is 22 separated from society for a significant period 23 of time. So after giving credit for the remand 24 time, the sentence I impose today is three and a 25 half years in jail. You may sit, Mr. Aleekuk. 26 The victim surcharge, in the circumstances, 27 will be waived. Official Court Reporters 14 1 As to Defence counsel's suggestion that I 2 recommend that Mr. Aleekuk not be considered for 3 parole until he completes any and all sex 4 offender counselling programs that are available, 5 I do acknowledge and I want to emphasize that 6 this can only be done by way of a recommendation, 7 not an order of the type provided for in section 8 743.6 of the Criminal Code. There may, in fact, 9 be no need for such a recommendation in light of 10 the fact that Mr. Aleekuk was required to serve 11 his entire sentence on his last conviction of 12 sexual assault at least in part because of his 13 refusal to take counselling. However, I see no 14 harm in making the recommendation, which, if 15 followed, would serve as a measure for the 16 public's protection. 17 At the same time, I recognize that it is the 18 responsibility of and within the jurisdiction of 19 the Parole Board to determine when Mr. Aleekuk 20 can safely be released into society. But I will, 21 then, direct the Clerk to endorse the warrant 22 with the Court's recommendation that Mr. Aleekuk 23 not be considered for parole until he completes 24 all sex offender counselling and programs that 25 are available to him and appropriate for him. 26 Is there anything further, counsel, that I 27 should address? Official Court Reporters 15 1 MR. SHABALA: Not from the Defence, Your 2 Honour. 3 MR. PRAUGHT: No, Your Honour. 4 MR. SHABALA: Thank you. 5 THE COURT: All right. Thank you very 6 much, counsel, for your presentation of the case 7 and for dealing with it so efficiently. We will 8 close court. 9 ..................................... 10 11 12 Certified to be a true and accurate transcript pursuant 13 to Rules 723 and 724 of the Supreme Court Rules. 14 15 ______________________________ 16 Jill MacDonald, RMR 17 Court Reporter 18 19 20 21 22 23 24 25 26 27 Official Court Reporters 16
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