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Abstract: Transcript of the Reasons for Sentence
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R. v. Apsimik, 2011 NWTSC 04 S-1-CR-2010-000039 IN THE SUPREME COURT OF THE NORTHWEST TERRITORIES IN THE MATTER OF: HER MAJESTY THE QUEEN - v - TERENCE ANTHONY APSIMIK Transcript of the Reasons for Sentence delivered by The Honourable Judge J. E. Richard, in Yellowknife, in the Northwest Territories, on the 9th day of February, 2011 APPEARANCES: Mr. A. Godfrey: Counsel on behalf of the Crown Mr. J. Bran: Counsel on behalf of the Accused ------------------------------------- Charge under s. 266 C.C. 1 THE COURT: This 23-year-old offender, 2 Terence Apsimik, has been convicted by a jury of 3 assault, contrary to section 266 of the Criminal 4 Code. This offence carries a maximum sentence of 5 five years imprisonment. 6 Late in the evening of October 20th, 2009, 7 the offender was likely in an intoxicated state, 8 although there is no precise evidence on that 9 point. He had been drinking alcohol and 10 consuming marihuana with a 17-year-old friend 11 throughout the day in the offender's apartment. 12 The two of them took a taxi cab from the 13 offender's apartment to the downtown area of 14 Yellowknife. The taxi driver was directed to go 15 to a parking area near Somba K'e Park. The 16 17-year-old friend was sitting behind the driver, 17 and this offender was sitting in the right rear 18 seat. The 17-year-old put a knife to the throat 19 of the driver and demanded money. The driver 20 struggled to get the knife away from his throat 21 and managed to do so, and in the process 22 sustaining cuts to both his hands. The 23 17-year-old got out of the car. This offender 24 then punched the taxi driver in the face from his 25 position in the right rear seat. This offender 26 then got out of the car and both he and the 27 17-year-old fled. The taxi driver called the Official Court Reporters 1 1 RCMP and they arrived on the scene within 2 minutes. The RCMP apprehended the two amateur 3 criminals not far from the scene within minutes. 4 No money had been taken from the victim. 5 The victim suffered cuts to both hands and 6 also minor swelling or puffiness to his lips or 7 face from the one punch administered by this 8 offender. He received minor medical treatment 9 from ambulance personnel called to the scene and 10 at the Stanton Hospital. 11 During his testimony at trial, the victim 12 stated that as a result of this incident he was 13 not able to work for a while, not because of 14 physical injuries but rather for emotional 15 reasons or traumatic stress. He states that he 16 no longer works the late night shift and also 17 said that he is more careful about which 18 addresses he goes to in connection with his 19 profession as a taxi driver in our city. 20 Following their arrest on October 20th, both 21 this offender and the 17-year-old were charged 22 with robbery. The 17-year-old appeared in Youth 23 Court, pleaded guilty to robbery, and received a 24 sentence of 12 months custody. 25 This offender, Terence Apsimik, was charged 26 with robbery, elected trial by Supreme Court 27 judge and jury, and requested a preliminary Official Court Reporters 2 1 inquiry in Territorial Court. The preliminary 2 was held in February 2010 and he was committed to 3 stand trial before a jury in this court. Having 4 elected trial by jury, he then joined the long 5 queue of accused persons wishing a jury trial. 6 His jury trial was scheduled for this week, that 7 is February of 2011, 16 months after the offence 8 date. 9 Though charged with robbery, the jury 10 properly found him not guilty of that offence but 11 guilty of the included offence of assault. There 12 was no evidence on which the jury could 13 necessarily infer that at the time this offender 14 administered the punch to the victim that he 15 himself intended to steal from the taxi driver or 16 that he intended to assist the 17-year-old to 17 steal from the taxi driver. 18 My impression of the nature of this assault 19 comes from the evidence of the victim, who I must 20 say did not embellish his evidence and gave his 21 evidence in a very fair and dispassionate manner 22 in describing the circumstances of the assaults. 23 The victim gave very credible evidence and it 24 should come as no surprise to the offender that 25 the jury accepted the victim's evidence about the 26 assault. In any event, it is my impression that 27 when administering the punch, this offender did Official Court Reporters 3 1 so in the heat of the moment, perhaps in a state 2 of panic, perhaps in an effort to extricate 3 himself from the situation, or perhaps it was 4 simply gratuitous violence. Although the 5 criminal conduct of these two immature young men 6 could be described as amateurish, their 7 respective crimes were nonetheless serious crimes 8 of violence. Mr. Apsimik's crime in assaulting a 9 vulnerable and terrified victim in the 10 circumstances I have described is very serious, 11 and the sentence must reflect the gravity of his 12 crime and must be proportionate to the level of 13 his responsibility. 14 The main purpose of the sentencing process 15 is to promote respect for the law and to maintain 16 a safe and peaceful community. This kind of 17 attack on a vulnerable taxi driver has to be 18 denounced as unlawful conduct that is not 19 acceptable to the members of our community. The 20 sentence that is imposed must act as a deterrent 21 to this offender and others, drunk or sober, from 22 engaging in this kind of unlawful conduct. As 23 has been stated in previous decisions of this 24 court and other courts, taxi drivers are in a 25 vulnerable position. They are people who provide 26 a service to the public in circumstances that put 27 them at risk. So the sentence imposed must Official Court Reporters 4 1 recognize that and must have as its objectives, 2 to repeat, deterrence of others from engaging in 3 this kind of unlawful conduct, and denunciation 4 of this unlawful conduct. 5 This offender, Terence Apsimik, is now 23 6 years old. I am told he has a grade 10 education 7 plus additional upgrading. I am told he is 8 presently employed, having obtained full-time 9 employment just a few weeks ago. Mr. Apsimik has 10 been in a common-law relationship for two years 11 and the couple are expecting their first child in 12 April of this year. 13 This is not the first time that Mr. Apsimik 14 has been before the court for a crime of 15 violence. His criminal record includes three 16 separate assault convictions. For his first 17 assault conviction in 2007, he received a 18 suspended sentence and was placed on probation 19 for 12 months. He was later in 2008 convicted of 20 two other assaults and for those received 21 custodial sentences of one month and two months 22 respectively. When he appeared in court in May 23 2008 and was sentenced on those two assaults and 24 other matters, he received a total sentence of 25 six months imprisonment, followed by 12 months 26 probation. Thus, it would appear that he would 27 have barely completed his probation period when Official Court Reporters 5 1 he committed his most recent crime of violence in 2 October 2009. 3 Counsel are agreed that a custodial sentence 4 is necessary in this case. However, the offender 5 requests that he be allowed to serve his sentence 6 in the community as a conditional sentence 7 pursuant to the provisions of section 742.1 of 8 the Criminal Code. I have considered this 9 request and have determined that a conditional 10 sentence is simply not on, in all of the 11 circumstances of this offence and this offender. 12 One of the factors in that determination is the 13 offender's repeated pattern of crimes of violence 14 in our community. I find that a conditional 15 sentence in this case would fail to promote in 16 Terence Apsimik a sense of responsibility for 17 what he has done. Mr. Apsimik submits to the 18 court through his counsel that he has in the past 19 16 months while awaiting trial matured a lot or 20 grown up. Part of growing up or maturing is 21 taking responsibility for one's conduct. To 22 impose a conditional sentence in the 23 circumstances of this offence and this offender 24 would be inconsistent with the fundamental 25 purpose and principles of sentencing, in 26 particular, promoting respect for the law, 27 denunciation, deterrence, proportionality, and Official Court Reporters 6 1 parity. 2 There are no mitigating circumstances to 3 take into consideration in the determination of 4 an appropriate sentence in this case. 5 The offender's criminal record is an 6 aggravating circumstance, as is the fact that the 7 victim of his violent crime was a vulnerable taxi 8 driver who had just been violently assaulted by 9 the offender's friend. 10 The prosecutor suggests that a period of 11 probation be added to any custodial term. I 12 decline to impose a probation term. Probation 13 has not worked for this offender and I see no 14 reason to add another file to the case load of 15 the office of Probation Services. 16 Please stand, Mr. Apsimik. 17 Terence Apsimik, for the crime that you have 18 committed, assault contrary to section 266 of the 19 Criminal Code, it is the sentence of the court 20 that you be imprisoned for a period of six 21 months. 22 In the circumstances, there will be no 23 victim fine surcharge. 24 You can be seated. 25 Is there anything further in this case, 26 counsel? 27 MR. GODFREY: None from the Crown, Your Official Court Reporters 7 1 Honour. 2 MR. BRAN: Your Honour, nothing in regard 3 to the sentence but a very brief comment on the 4 comments earlier today. I'd like to thank the 5 court for that positive feedback and I certainly, 6 upon reflection, agree with all of your comments 7 and thank you for pointing those out. It can 8 only make my practice in the court better in the 9 future. So thank you for those comments. 10 THE COURT: Thank you. We will close 11 court. 12 .............................. 13 14 Certified to be a true and accurate transcript pursuant 15 to Rule 723 and 724 of the Supreme Court Rules of Court. 16 17 ______________________________ 18 Annette Wright, RPR Court Reporter 19 20 21 22 23 24 25 26 27 Official Court Reporters 8
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