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Abstract: Transcript of the reasons for Sentence
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R. v. Kodzin, 2011 NWTSC 02 S-1-CR2009000060 IN THE SUPREME COURT OF THE NORTHWEST TERRITORIES IN THE MATTER OF: HER MAJESTY THE QUEEN - vs. - SHAWN JASON KODZIN _________________________________________________________ Transcript of the Reasons for Sentence by The Honourable Justice J.Z. Vertes, at Yellowknife in the Northwest Territories, on January 28th A.D., 2011. _________________________________________________________ APPEARANCES: Mr. B. MacPherson: Counsel for the Crown Mr. P. Fuglsang: Counsel for the Accused ---------------------------------------- Charge under s. 271 Criminal Code of Canada An order has been made banning publication of the identity of the Complainant/Witness pursuant to Section 486.4 of the Criminal Code of Canada Official Court Reporters 1 THE COURT: The offender, Shawn Kodzin, 2 was convicted by me, after a trial, on a charge 3 of sexual assault committed in Yellowknife on 4 April 20th, 2008. I will read a brief excerpt 5 from my reasons for convicting him, delivered on 6 October 25th, 2009, to set out the facts of the 7 offence: 8 The complainant had been 9 drinking with her common-law 10 husband for a day or so. She 11 described events as being "like a 12 blur". 13 On April 20, the complainant's 14 cousin Andrew, who was not 15 drinking, went to the complainant's 16 home at around midnight. The 17 complainant and her husband were 18 drinking. At around 4 a.m., the 19 accused arrived at the house. 20 Andrew described him as drunk. The 21 complainant and her husband, along 22 with the accused, continued 23 drinking. Between 8 and 9 a.m., 24 the drinkers started passing out. 25 The complainant and her husband 26 went upstairs to go to sleep. 27 Andrew went up a short time later Official Court Reporters 1 1 to see if they were awake but he 2 saw that both of them were 3 apparently passed out in their 4 bedroom, asleep naked lying on the 5 bed. Andrew then went back 6 downstairs to try to get the 7 accused to leave. The accused was 8 pushing at him and said he wanted 9 to say goodbye to the others. The 10 accused then asked to use the 11 washroom which, in that house, was 12 located upstairs. 13 The accused went upstairs. 14 After 15 minutes or so, Andrew 15 became suspicious and went back 16 upstairs to check. He looked in 17 the bedroom and saw the accused on 18 top of the complainant. He had his 19 pants and underwear off. She was 20 naked. When asked what he saw, 21 Andrew answered "he was fucking her 22 when she was unconscious". Her 23 eyes were closed. Her husband was 24 still asleep beside her. 25 Andrew told the accused to get 26 off of her. The accused did so and 27 ran out of the house. Andrew then Official Court Reporters 2 1 tried to wake the complainant's 2 husband but could not do so. 3 The complainant had no 4 recollection of what happened that 5 evening. She may recall the 6 accused being at her house but she 7 could not be sure if that was a 8 real memory or based on what she 9 heard from her husband and cousin 10 the next day. She did say that she 11 never consented to sexual activity 12 with the accused... 13 The police were called and 14 found a wallet, a men's pair of 15 pants and men's underwear at the 16 foot of the complainant's bed. The 17 wallet belonged to the accused. 18 DNA analysis of samples from the 19 underwear matched to the accused's 20 DNA... 21 The accused testified. He 22 said he had been drinking that 23 evening, first at a bar and then at 24 a cousin's house. He has no memory 25 of being at the complainant's home. 26 Based on this evidence, I was satisfied 27 that the complainant was passed out and asleep Official Court Reporters 3 1 throughout the encounter with the offender. He 2 took advantage of a vulnerable victim and I 3 convicted him as charged. 4 Many times the courts in this jurisdiction 5 have commented on the prevalence of this type of 6 crime, specifically sexual assaults committed 7 against women while they are either asleep or 8 otherwise unconscious. Courts have repeatedly 9 said that since this particular type of sexual 10 assault is so frequent, sentencing must 11 emphasize deterrence, denunciation and promotion 12 of a sense of responsibility in the offender. 13 The most recent pronouncement of this came from 14 the Court of Appeal on January 18, 2011, in the 15 case of R. v. A.J.P.J. (2011 NWTCA 2), 16 where it increased the sentence of a person 17 convicted of a similar crime from two years 18 imprisonment to one of four years. 19 Recently, the Alberta Court of Appeal, in 20 the case of R. v. Arcand (2010 ABCA 363), 21 reiterated the principle that where a 22 complainant is passed out when an offender 23 forces intercourse on her constitutes an 24 aggravating factor in sentencing. The majority 25 judgment stated as follows: 26 Sexually assaulting an unconscious 27 victim elevates an offender's Official Court Reporters 4 1 degree of responsibility for the 2 crime beyond the norm contemplated 3 by the three year starting point. 4 An offender who sexually assaults a 5 person who is asleep or passed out 6 is treating that person as if the 7 person were an object to be used - 8 and abused - at will. Since the 9 offender knows full well that the 10 person is not consenting, this 11 reveals an enhanced degree of 12 calculation and deliberateness by 13 the offender. Further, at that 14 point, the person is at their most 15 vulnerable, unable to defend 16 themselves in any way and unable to 17 call for help from others. The 18 offender knows this too, adding 19 further to the high level of moral 20 blameworthiness for the illegal 21 conduct. The place people most 22 expect to enjoy security of their 23 person is in their home. This 24 complainant was entitled to assume 25 that she could sleep in a bed in 26 her family home without having her 27 clothes removed while in a Official Court Reporters 5 1 vulnerable state and penetrated 2 sexually without her consent. For 3 these reasons, sexually assaulting 4 an unconscious victim is an 5 aggravating circumstance. 6 I recognize that the offender himself was 7 extremely intoxicated at that time, so much so 8 that he claims to have no memory of it. 9 Intoxication, of course, is no defence to this 10 charge. The seriousness of the sexual assault 11 is not lowered because an offender was 12 intoxicated by alcohol or drugs while committing 13 it. It is not generally a mitigating factor. 14 However, intoxication can indicate that the 15 offender acted out of character or spontaneously 16 as opposed to careful and deliberate planning. 17 The offender is a 25-year-old Dene man, 18 raised in the small traditional Tlicho community 19 of Wekweti. I have had the benefit of a 20 pre-sentence report which indicates that he grew 21 up in a stable and loving environment. He is a 22 high school graduate and has been employed 23 full-time at the BHP diamond mine since 2006. 24 He has been in a common-law relationship for the 25 past five years and he has a two-year-old 26 daughter. He has been described as a "good 27 father" and a "good provider" for his family. Official Court Reporters 6 1 This is a truly tragic situation. It is 2 tragic for the victim, of course, because her 3 personal integrity has been violated by someone 4 whom she knew since high school and was a friend 5 of her husband. It is tragic for the offender 6 because notwithstanding his good background and 7 personal history, he will be going away to 8 prison for this crime, a crime committed because 9 he went on a drinking binge that day. And, it 10 is even more tragic for his family because they 11 will lose this good father and good provider for 12 a long time. But it is this man's actions that 13 caused this tragedy. He is the only one 14 responsible. 15 There is no question that the principle of 16 restraint, as reflected in the provisions of the 17 Criminal Code, must be kept in mind. This is 18 particularly so in the case of a first offender 19 facing his first prison sentence. 20 I also keep in mind the circumstances of 21 the offender as an aboriginal offender, as I am 22 required to do by Section 718.2(e) of the 23 Criminal Code. I recognize that there are 24 wide-spread systemic factors of a general nature 25 affecting all aboriginal Canadians that have 26 placed them at a disadvantage. However, in this 27 case, I have not been told of any systemic Official Court Reporters 7 1 factors specific to this accused that may have 2 played a part in bringing him before the Court. 3 Quite the contrary, he had a healthy upbringing, 4 he has family support; and he has been a useful 5 and productive member of society. 6 This crime demands no different a sentence 7 than if it were committed by a non-aboriginal 8 offender in the same circumstances. Serious 9 sexual assaults on women, especially aboriginal 10 women, are a clear and pressing problem in this 11 jurisdiction. 12 The courts have repeatedly said that the 13 starting point sentence for this type of crime 14 is three years imprisonment. Nothing in the 15 circumstances of this case takes it out of this 16 category. But to the starting point I must of 17 course apply and consider the aggravating and 18 mitigating circumstances of the case. 19 As previously noted, the fact that the 20 victim was asleep at the time is an aggravating 21 circumstance. 22 Crown counsel says that there are no 23 mitigating circumstances. But, yet, we have a 24 relatively young offender, one who was 22 years 25 old at the time of the offence, a man of 26 previous good character. It seems to me that 27 even in Arcand, these factors were recognized as Official Court Reporters 8 1 considerations in mitigation. 2 Furthermore, I am convinced that the 3 offender is truly remorseful for his actions. 4 In speaking before sentencing, he gave what I 5 consider to be a sincere apology to the victim. 6 These too serve to mitigate the sentence. And I 7 also note that there was no specific breach of 8 trust in this case, a factor that weighed 9 heavily in the imposition of the sentences in 10 the recent A.J.P.J. case and some of the other 11 cases cited by Crown counsel. While this is 12 certainly not a mitigating factor, it does not 13 add to the list of aggravating factors. 14 Crown counsel recommends a sentence of 15 three to four years imprisonment. In doing so 16 he has relied on numerous precedents of this 17 Court and the recent reaffirmation by the Court 18 of Appeal of the three year starting point. 19 Defence counsel asks that I consider a 20 sentence of less than two years. He also 21 submitted that I should consider a conditional 22 sentence so that the offender could serve his 23 sentence in the community. I heard as well 24 several heart-felt pleas for leniency from 25 family members, including the offender's father 26 and mother, asking that he be sent back to his 27 family and his community. Official Court Reporters 9 1 Let me say that I take to heart the 2 comments of the family members who spoke on the 3 offender's behalf. I know that they do not want 4 to see their loved one gone from his family and 5 gone from home for an extended period of time. 6 But let me also say as directly as I can that 7 this is something that I cannot do. I cannot 8 send him back to his family and his community. 9 Sentencing in every criminal case is a 10 difficult process. It requires the balancing of 11 different objectives. If I look at this case 12 strictly with the offender in mind, I might be 13 far more lenient. I have no doubt that he has 14 been a good son, a good husband, a good father, 15 and a good worker. But, he made a terrible 16 mistake. He made a terrible decision when he 17 got drunk. He made a terrible mistake when he 18 violated someone else. It is not just a 19 mistake, it is a crime, and he is responsible 20 for the harm he has caused. So I cannot just 21 think about what would be best for this offender 22 and his family. I have to think as well about 23 vindicating the victim, about upholding the law 24 so other women are not victimized, and about 25 sending a message to everyone that this type of 26 behaviour is morally wrong and young men who 27 take advantage of vulnerable women will be Official Court Reporters 10 1 punished for it. 2 I cannot send Shawn Kodzin back to his 3 community for all of these reasons. 4 Furthermore, as counsel know or should 5 know, on December 1st, 2007, the Parliament of 6 Canada amended Section 742.1 of the Criminal 7 Code so as to preclude the availability of a 8 conditional sentence on a conviction for sexual 9 assault. So it is simply not available in this 10 case. 11 Having considered the starting point as 12 enunciated by the Court of Appeal, the 13 circumstances of this case, and the aggravating 14 and mitigating factors I previously mentioned, I 15 have concluded that I can go somewhat below the 16 starting point primarily because of the previous 17 good character of this offender. I have 18 concluded that an appropriate sentence is one of 19 30 months imprisonment. From that I will deduct 20 the three months the offender has already served 21 in custody. 22 Stand up, Mr. Kodzin. 23 Mr. Kodzin, I know that you know that you 24 made a terrible mistake. But your actions 25 caused harm to someone else and now you must pay 26 the price for that. But I want you to keep in 27 mind all the good things that were said about Official Court Reporters 11 1 you. I heard what your parents and your aunt 2 said. I read what was said about you in those 3 letters of support that your counsel gave to me. 4 Everyone considers you to be a good son, and you 5 can still be a good man. So you should think 6 about your future because you still have a very 7 long and valuable future in front of you. 8 The sentence of this Court is that you 9 serve a term of 27 months imprisonment. 10 You may sit down. 11 In addition, since a conviction for sexual 12 assault brings into play various mandatory terms 13 of the Criminal Code, and in the absence of 14 information and evidence to suggest that the 15 making of these orders would be grossly 16 disproportionate as between the interests of the 17 offender and the interests of society, I make 18 the following orders: 19 1. There will be an order requiring the 20 offender to provide a sample for DNA analysis 21 and submission to the DNA databank pursuant to 22 Section 487.051 of the Criminal Code. 23 2. I make an order that the offender must 24 comply with the provisions of the Sexual 25 Offender Information Registration Act for the 26 designated period of 20 years pursuant to 27 Section 487.012 of the Criminal Code. Official Court Reporters 12 1 3. I make an order under the mandatory 2 provisions of Section 109 of the Criminal Code 3 prohibiting the offender from having in his 4 possession any firearms, ammunition, or 5 explosives for a period of no less than ten 6 years from the date of his release from his 7 sentence of imprisonment, ending ten years from 8 that date. However, considering the offender's 9 background and circumstances I will order, 10 pursuant to Section 113 of the Criminal Code, 11 that consideration be given to authorizing the 12 lifting of the prohibition order for sustenance 13 purposes. 14 I will rely on Crown counsel to provide the 15 necessary and appropriate formal orders for 16 entry on the Court record. 17 Under the circumstances, there will be no 18 victim of crime fine surcharge. 19 Finally, considering all of the 20 circumstances, I recommended that Mr. Kodzin 21 serve his sentence in the Northwest Territories. 22 Anything else, counsel? 23 MR. MacPHERSON: No, thank you, Your Honour. 24 MR. FUGLSANG: No, sir, thank you. 25 THE COURT: Very well then, thank you for 26 your submissions, court is closed. 27 Official Court Reporters 13 1 2 3 Certified to be a true and accurate transcript pursuant 4 to Rules 723 and 724 of the Supreme Court Rules, 5 6 7 8 ____________________________ 9 Lois Hewitt, CSR(A), RPR, CRR Court Reporter 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 Official Court Reporters 14
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