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Decision information:
Abstract: Transcript of the Reasons for Sentence
Decision Content
R. v. NITSIZA, 2010 NWTSC 22 S-1-CR-2009-000054
IN THE SUPREME COURT OF THE NORTHWEST TERRITORIES
IN THE MATTER OF:
HER MAJESTY THE QUEEN
- v -
LEROY JAMES NITSIZA
__________________________________________________________
Transcript of the Reasons for Sentence delivered by The
Honourable Justice J.Z. Vertes, sitting in Whati, in the
Northwest Territories, on the 8th day of March, A.D. 2010.
__________________________________________________________
APPEARANCES:
Ms. J. Walsh: Counsel for the Crown
Mr. P. Falvo: Counsel for the Accused
(Charge under s. 267(a) of the Criminal Code of Canada)
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1 THE COURT: The accused, Leroy James
2 Nitsiza, has pleaded guilty to a charge of using
3 a weapon in the commission of an offence,
4 contrary to Section 267(a) of the Criminal Code.
5 The offence carries a potential maximum penalty
6 of ten years in prison.
7 The plea of guilty came at the start of the
8 accused's scheduled jury trial here in Whati.
9 While every guilty plea is worthy of
10 consideration as a mitigating factor on
11 sentencing - since it avoids the necessity of
12 having the victim of the crime relive the
13 circumstances by testifying and because it
14 demonstrates an acknowledgment of responsibility
15 by the offender - not every guilty plea, however,
16 will be credited with the same mitigating effect.
17 A plea offered at an early stage of the
18 proceeding will be given much more weight than
19 one offered, as it was here, literally at the
20 last minute. I do not fault defence counsel for
21 that. Sometimes it takes the sight of one's
22 community assembled for jury selection to focus
23 the mind of an accused person.
24 The accused and the victim in this case had
25 been in a common-law relationship since 2006. On
26 March 30th, 2009, the accused beat the
27 complainant with his fists and also used, at one
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1 point, a leather belt and, at another point, a
2 plastic coat hanger to hit her. The victim
3 suffered extensive bruising on her face and body.
4 The victim was further humiliated by having her
5 clothes stripped from her body while the accused
6 was beating her. She was seen by the nurse at
7 the local medical centre on March 31st and
8 transferred to the Stanton Hospital in
9 Yellowknife for further treatment.
10 The accused was intoxicated at the time, but
11 this of course is no excuse. The victim
12 indicated that this assault occurred during an
13 argument between the two of them. Both were
14 drinking at the time. This was the second time
15 in the space of one week that the accused beat
16 the victim as a result of some argument. The
17 accused was intoxicated then as well.
18 The accused is 24 years old. Regrettably,
19 he already has a criminal record. In October
20 2008 he was convicted of sexual assault and
21 assault with a weapon. The circumstances must
22 have been relatively minor since he was only
23 sentenced to a total of five months in jail. He
24 was, however, also placed on probation for one
25 year. So, the accused was subject to a probation
26 order when this offence was committed. This is
27 an aggravating factor.
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1 Then, in August 2009, the accused was
2 convicted of assault causing bodily harm and two
3 counts of breach of probation. These offences
4 occurred a month or so before the current
5 offence. At that time, he was sentenced to a
6 total of six months in custody plus one year
7 probation.
8 During his last period of incarceration, the
9 accused went through a two-month family violence
10 treatment program. Since his release, he has
11 seen a counsellor who comes twice a month to
12 Whati. All that is to his credit and
13 demonstrates his willingness to come to grips
14 with his problems with violence and alcohol
15 abuse. But, as counsel recognize, he is now
16 before me to be sentenced on a serious case of
17 spousal violence. The Criminal Code expressly
18 recognizes, in Section 718.2(a)(ii), that abuse
19 of one's spouse or common-law partner is an
20 aggravating factor in sentencing.
21 It is sad but true that domestic violence is
22 a profound problem that must be denounced in
23 clear terms. By the sentence it passes, the
24 Court must attempt to deter its recurrence on the
25 part of the accused and on the part of other men.
26 Violence towards one's spouse or partner
27 constitutes a breach of trust. The paramount
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1 considerations therefore, as Crown counsel
2 stated, are deterrence and denunciation.
3 In this case, as in many others, the victim
4 has indicated that she wants her relationship
5 with the accused to continue. But the desires of
6 the victim must not prevail over what would
7 otherwise be the required sentence. The aim here
8 is not to simply reject the victim's wishes but
9 to break the cycle of violence exhibited by the
10 accused.
11 Counsel did not refer to it, but I must also
12 take into consideration, as required by the
13 Criminal Code, the fact that the accused is an
14 aboriginal Canadian. In this case, the accused's
15 aboriginal background is certainly a factor to
16 consider. Unfortunately, in too many of our
17 communities there are personal histories similar
18 to that of this accused, particularly a history
19 as here of being exposed to alcohol abuse and
20 domestic violence at an early age, as well as
21 suffering the loss of loved ones. But I did not
22 hear anything that would suggest particular
23 unique systemic or background factors applicable
24 to this accused that would suggest a disposition
25 different from that which would be imposed on any
26 offender in his circumstances committing this
27 type of crime.
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1 I have taken into account the fact that the
2 accused has pleaded guilty. I have taken into
3 account the brief two weeks the accused spent in
4 pre-trial custody. I also acknowledge the
5 accused's expression of remorse as given through
6 his counsel. In my opinion, however, this
7 sentence calls for a period of incarceration that
8 recognizes the aggravating circumstances
9 previously mentioned. I will, however, couple
10 that sentence with a further period of probation
11 so as to assist in the accused's efforts at
12 rehabilitation.
13 Stand up, Mr. Nitsiza.
14 Mr. Nitsiza, your counsel has told me that
15 you recognize the difficulties caused by your
16 behaviour and you recognize the seriousness of
17 your behaviour. I took what your counsel said at
18 face value, that you sincerely regret what has
19 happened in the past and that you sincerely want
20 to change your behaviour. I hope you do. But I
21 hope you also recognize that I am sentencing you
22 here for something you did a year ago, something
23 that was very serious, very violent, and I have
24 to send a message not just to you but to
25 everybody else that this type of behaviour, that
26 violence between spouses or common-law partners,
27 is not going to be tolerated. Do you understand?
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1 THE ACCUSED: Yes.
2 THE COURT: So I wish you the best of luck
3 in your future.
4 I impose a sentence of 18 months'
5 imprisonment to be followed by probation for a
6 further period of 18 months. The terms and
7 conditions of that probation order will be, in
8 addition to the statutory conditions, that you be
9 under the supervision of a probation officer and
10 that you participate in such counselling services
11 as directed by a probation officer.
12 Since the law requires that I make an order
13 that samples of your DNA be collected and put in
14 the DNA database, I make that order under Section
15 487.051 of the Criminal Code. I do so since this
16 offence is a primary designated offence.
17 This offence also requires that a firearm
18 prohibition order be made under Section 109 of
19 the Criminal Code. I will make that order in the
20 usual terms. It will begin today and expire ten
21 years from your release from imprisonment.
22 Mr. Nitsiza, I sincerely hope that you will
23 be able to bring your life together for yourself
24 and for your family in the future. You may sit
25 down.
26 Under the circumstances, there will be no
27 victim of crime fine surcharge.
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1 Is there anything else we need to address,
2 Counsel? Ms. Walsh?
3 MS. WALSH: Nothing from the Crown, Your
4 Honour.
5 THE COURT: Mr. Falvo?
6 MR. FALVO: Nothing further, Your Honour.
7 THE COURT: All right. Then thank you for
8 your assistance both. We will adjourn.
9 THE COURT CLERK: Thank you, Your Honour. All
10 rise. Court is now adjourned.
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14 Certified Pursuant to Rule 723
of the Rules of Court
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Jane Romanowich, CSR(A), RPR
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