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Abstract: Transcript of the Oral Reasons for Sentence
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R. v. Kenny, 2010 NWTSC 55 S-1-CR-2009-000035 IN THE SUPREME COURT OF THE NORTHWEST TERRITORIES IN THE MATTER OF: HER MAJESTY THE QUEEN - V - DARREN LEE KENNY _________________________________________________________ Transcript of the Oral Reasons for Sentence by The Honourable Justice V. A. Schuler, sitting in Fort Smith, in the Northwest Territories, on the 30th day of June, A.D., 2010. _________________________________________________________ APPEARANCES: Mr. M. Lecorre: Counsel for the Crown Mr. J. Bran: Counsel for the Defence --------------------------------------- Charge under s. 271 Criminal Code of Canada Publication Ban pursuant to Section 486.4 of the Criminal Code Official Court Reporters 1 THE COURT: Darren Lee Kenny has been 2 convicted of sexual assault after a trial, and it 3 is now my duty to sentence him for that offence. 4 The circumstances of the offence were reviewed in 5 my judgement yesterday, so I will not go into a 6 great deal of detail again. 7 The victim and Mr. Kenny had been seeing 8 each other for a period of approximately two 9 weeks prior to the events in question. She 10 considered him to be her boyfriend and he appears 11 to have considered her as his girlfriend. On 12 the night in question, after a few minutes of 13 consensual kissing, Mr. Kenny ignored the 14 17-year-old victim's attempts to physically 15 resist him and her verbal protests and ground 16 his groin into her bum, then turned her over 17 and had intercourse with her, again despite her 18 resistance, and then moved her on top of him and 19 continued to grind or press against her until she 20 was able to get off him. She had not had sex 21 before and she told him that while this was 22 happening. She was very upset and crying after 23 these events. 24 Mr. Kenny's actions amount to a serious 25 sexual assault, a serious breach of the victim's 26 sexual privacy and integrity. The victim made it 27 clear to Mr. Kenny that she did not want to do Official Court Reporters 1 1 anything more after the kissing, that she wanted 2 to go to sleep, but he ignored that and went 3 ahead for his own sexual gratification. 4 Mr. Kenny was 26 years old at the time. Although 5 there is a nine-year age difference between him 6 and the victim, both were students at the college 7 here in Fort Smith at the relevant time. 8 The victim has been traumatized by the 9 incident. In her victim impact statements she 10 refers to being afraid to stay alone, to not 11 feeling safe, to feeling dirty and being 12 distrustful of men, and concerned about how she 13 may react in future intimate relationships. She 14 was very emotional while testifying. 15 The psychological effects she describes are, 16 sadly, consistent with what the Court has heard 17 from other victims of sexual assault, and those 18 effects may be long lasting. Nothing the Court 19 can do can resolve the difficulties that the 20 victim is facing, but perhaps with the trial 21 having been held, that is one less obstacle for 22 her to deal with or one less obstacle standing in 23 the way of her efforts to cope with the effects 24 of this incident. 25 Mr. Kenny, now aged 28, is an aboriginal man 26 born in Inuvik and raised in Deline where he has 27 spent most of his life. At the time of the Official Court Reporters 2 1 offence he had obtained a grade 12 education and 2 was enrolled in a teacher education program at 3 the college. He has a two-year-old child who 4 lives with his mother in Edmonton, and his 5 current partner is expecting their child at the 6 end of July. Mr. Kenny's last full-time work 7 was in 2009 with a mining company engaged in 8 exploration work near Deline. 9 Mr. Kenny does have a lengthy record, 10 beginning with findings of guilt in Youth Court 11 in 1998 and 1999, and then continuing as an adult 12 with convictions from 2001 to 2009. He indicates 13 that the record is alcohol related, that he has 14 been an abuser of alcohol, especially in regard 15 to the convictions in 2003 for break and enter, 16 which involved looking for alcohol and which 17 resulted in a total 16-month jail sentence. I do 18 note that there is no evidence that he was under 19 the influence of alcohol at the time of the 20 offence for which I am sentencing him. 21 Mr. Kenny's record is mainly for property 22 offences and offences such as breach of probation 23 involving non-compliance with court orders. I 24 infer from the sentences imposed on Mr. Kenny 25 that certainly in the last five years the 26 offences were relatively minor in nature. It 27 is noteworthy that Mr. Kenny has no prior Official Court Reporters 3 1 convictions for offences of violence and no 2 prior convictions for sexual offences. 3 The maximum punishment for sexual assault 4 under Section 271 of the Criminal Code is ten 5 years imprisonment. There is no minimum 6 punishment. In the Northwest Territories a 7 serious sexual assault conviction, where the 8 offender does not have a prior related record, 9 generally results in a sentence in the area of 10 three years, but that may be increased or 11 decreased depending on the circumstances of the 12 offence and the offender. 13 Sentencing is, however, a very 14 individualized process, which is precisely 15 why it is one of the most difficult aspects of a 16 judge's work. No two offences and no two 17 offenders are ever exactly the same. In 18 determining what the sentence should be in this 19 case I have to take into account mitigating and 20 aggravating factors. The fact that Mr. Kenny 21 exercised his right to a trial is not an 22 aggravating factor, it just means that he does 23 not get the mitigating effect of a guilty plea. 24 In this case, despite the fact that 25 Mr. Kenny did not plead guilty, during sentencing 26 submissions, when asked if he wished to say 27 anything, he did say he wanted to apologize to Official Court Reporters 4 1 the victim and he said that it should never have 2 happened. I take that as an acknowledgment of 3 the harm he has caused to the victim and I do 4 give it some mitigating effect, although 5 obviously much less than had there been a 6 guilty plea and had the victim not had to 7 testify. There are no aggravating factors 8 outside the circumstances of the offence itself. 9 Crown Counsel seeks a sentence of three and 10 a half to four years in jail. Defence counsel 11 seeks a sentence of two years less a day. Both 12 recognize that some credit should be given for 13 remand time as against the suggested sentences, 14 and I will refer to the issue of remand time 15 further on. 16 Counsel have also referred to all of the 17 relevant principles of sentencing. The sentence 18 I impose must aim at denouncing Mr. Kenny's 19 behavior in sending the message that it is not an 20 acceptable way to behave, and that it will result 21 in serious consequences for the offender. The 22 sentence should also deter, in other words, 23 discourage other young men who might be inclined 24 to act the same way. In other words, it should 25 send the message to them that no means no, stop 26 means stop, and if they do not listen they will 27 have to face the consequences. Official Court Reporters 5 1 Although Mr. Kenny does not have a prior 2 record for sexual assault or offences related to 3 that, because he does have a prior criminal 4 record, the sentence should aim at deterring him 5 from committing any further crimes. At the same 6 time, Mr. Kenny's rehabilitation cannot be 7 ignored and should be encouraged. Despite his 8 past trouble and offences, he did obtain a grade 9 12 education, he did try to further his education 10 by enrolling in the teacher training program, 11 and he was able to get the job with the mining 12 company, which I expect is considered a good job 13 to have by people in a small community like 14 Deline. I infer that Mr. Kenny would like to be, 15 and that he can be, a productive member of 16 society, and in my view he should not be 17 discouraged from that. 18 The sentence I impose must also be 19 proportionate to the gravity of the crime and 20 the blameworthiness of the offender. This was, 21 as I have said, a serious sexual assault and 22 Mr. Kenny is fully responsible for what happened. 23 His actions were not predatory, but he did take 24 advantage of his much younger girlfriend. In 25 many ways this is a very sad case. Had Mr. Kenny 26 stopped when the victim told him to, obviously 27 no one knows, but it is possible that the Official Court Reporters 6 1 relationship might have continued and developed. 2 Maybe it would not have, maybe it would have 3 ended. But instead Mr. Kenny is here convicted 4 of a serious criminal offence. The complainant 5 is suffering, she is traumatized, and all of this 6 is because of Mr. Kenny's selfishness and his 7 disregard of the victim's wishes and feelings. 8 Pursuant to Section 718.2(e) of the Criminal 9 Code I do bear in mind that Mr. Kenny is 10 aboriginal, although there is no evidence before 11 me that systemic factors played a role in his 12 having committed this offence. It was not 13 suggested by counsel that any sanction other 14 than imprisonment would be reasonable in the 15 circumstances, nor do I think it would be 16 considering the nature and seriousness of the 17 offence and the prevalence of sexual assault in 18 the Northwest Territories. 19 I also have to consider that Mr. Kenny has 20 spent some time in pre-trial custody or what is 21 often called remand. The law is clear that the 22 extent to which I may credit that time towards 23 the sentence I impose today is in my discretion. 24 There is no submission before me that the new 25 legislation governing credit for remand time has 26 any applicability to this case in which the 27 offence pre-dates that legislation. Official Court Reporters 7 1 The law before that legislation is reflected 2 in the decision of the Supreme Court of Canada in 3 the case of R. v. Wust where the Court said that 4 a two-for-one credit, although not mandatory, is 5 appropriate to reflect the harshness of pre-trial 6 custody. Pre-trial custody is considered harsh 7 because it does not attract remission, as does 8 time after sentencing, and also because the 9 conditions of pre-trial custody may not offer 10 the programs or may be more difficult than the 11 conditions that apply after an offender is 12 sentenced. 13 I do not think that lack of priority in 14 programs, which is what defence counsel 15 described, can be put on the same level as lack 16 of any access to programs. Without evidence of 17 any specific conditions that could be considered 18 harsh in Mr. Kenny's pre-trial custody, it seems 19 to me that the main difference between pre-trial 20 and post-sentence custody is the lack of 21 remission. 22 Mr. Kenny's pre-trial custody consists of 23 approximately eight months, being the time from 24 his arrest on October 9, 2008, until he was 25 released on bail on November 26, 2008, and then 26 from the time of his rearrest on December 9, 27 2009, after he was erroneously released from Official Court Reporters 8 1 custody and then failed to appear at his earlier 2 trial date. He has been in custody since then, 3 in other words December 9, 2009, until the 4 present. 5 At least part of the reason Mr. Kenny has 6 been in custody, has been kept in custody, is 7 because of his failure to appear at the November 8 of 2009 trial that was scheduled. Counsel 9 advises that he has not been charged with failing 10 to appear. So if I take the fact that he did 11 fail to appear into account now in relation to 12 the remand time he will not be in a situation 13 where he may also be penalized for the same thing 14 by being sentenced on a charge of failing to 15 appear, but at the same time I think I need to be 16 cautious since I do not know if there is a reason 17 why he was not charged with failing to appear. 18 Counsel, both of whom are relatively new to this 19 case, have not been able to provide me with that 20 information. Ultimately, in all of the 21 circumstances, I take the view that a two-for-one 22 credit for the pre-trial custody is not 23 appropriate. I will, however, credit the time 24 on approximately a 1.5 basis. 25 There are certain ancillary orders that I 26 will deal with now. First, a DNA order is 27 mandatory in these circumstances under Section Official Court Reporters 9 1 487.051 of the Criminal Code. So I make that 2 order for the taking of a sample to obtain 3 Mr. Kenny's DNA. 4 An order for compliance with the Sex 5 Offender Information Registration Act is required 6 under Section 490.012 of the Criminal Code unless 7 Mr. Kenny establishes, under subsection (4), that 8 its impact would be grossly disproportionate, 9 which he has not sought to establish. So I order 10 that he do comply with the registration and 11 reporting requirements under that Act for a 12 period of 20 years. 13 Finally, under Section 109(1)(a) of the 14 Criminal Code, since sexual assault is inherently 15 a violent offence, I make a firearm prohibition 16 order in the usual terms. That order begins 17 today and will expire ten years after Mr. Kenny's 18 release from imprisonment. Stand please, 19 Mr. Kenny. 20 Having considered all of the circumstances, 21 including that this is the first time that 22 Mr. Kenny is convicted of an offence involving 23 violence or force against another person, I have 24 decided that a proper and adequate sentence in 25 this case is three years in jail. After 26 crediting the remand time the sentence that I 27 impose today is two years less a day. You may Official Court Reporters 10 1 sit down, Mr. Kenny. In the circumstances the 2 victim surcharge is waived. 3 I have considered the request that Crown 4 Counsel relayed from the victim that the warrant 5 be endorsed with the recommendation that 6 Mr. Kenny not serve his time at the correctional 7 centre in Hay River because that is where she 8 resides. I have considered that quite carefully 9 and I understand obviously why she makes that 10 request. 11 However, the reality in the Northwest 12 Territories is that there are only two 13 correctional facilities for adult males, and a 14 number of considerations go into the decision as 15 to which facility any individual inmate is placed 16 in. That, I believe, is a matter best left to 17 the correctional authorities. I do not feel that 18 I have enough information, information that they 19 would have, that would allow me to make a 20 recommendation. 21 The correctional authorities are certainly 22 used to dealing with instances where, because of 23 where an inmate is serving his sentence or her 24 sentence, there may be the potential for contact 25 with a victim or other witnesses in a case, and 26 I think they are best equipped to make the 27 decisions and put into place any conditions that Official Court Reporters 11 1 need to be put into place to deal with those 2 issues. 3 So for those reasons I decline to make 4 the recommendation. I would encourage victim 5 services and Crown Counsel to help the victim 6 make inquiries as to whether she may present her 7 concerns directly to the correctional authorities 8 and tell them how she feels and see whether they 9 will take that into account when they are making 10 a placement, but I will not go so far as to 11 actually making the recommendation as to where 12 he serves his time. 13 Is there anything further, counsel? 14 MR. LECORRE: No, Your Honour. 15 THE COURT: Is there someone here to take 16 Mr. Kenny back into custody? 17 THE SHERIFF: I believe there is. 18 MR. LECORRE: Yes, there is, Your Honour. 19 THE COURT: All right. 20 THE CLERK: Probation? 21 THE COURT: Pardon me? 22 THE CLERK: Will there be any terms of 23 probation? 24 THE COURT: No, there is no probation 25 order. We will close court. 26 ----------------------------- 27 Official Court Reporters 12 1 2 Certified correct to the best of my skill and ability. 3 4 _____________________________ 5 Joel Bowker Court Reporter 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 Official Court Reporters 13
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