Supreme Court
Decision Information
Decision information:
Abstract: Transcript of the Reasons for Sentence
Decision Content
R. v. Carpenter, 2011 NWTSC 61 S-1-CR-2011-000087 IN THE SUPREME COURT OF THE NORTHWEST TERRITORIES IN THE MATTER OF: HER MAJESTY THE QUEEN - vs. - VERNON CARPENTER _________________________________________________________ Transcript of the Reasons for Sentence by The Honourable Justice L. A. Charbonneau, at Yellowknife in the Northwest Territories, on 28th November A.D., 2011. _________________________________________________________ APPEARANCES: B. MacPherson, Esq.: Counsel for the Crown T. Bock, Esq.: Counsel for the Accused ---------------------------------------- Charge under s. 271, 279(2) 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: Good afternoon, Mr. 2 Bock. Did you want Mr. Carpenter sitting with 3 you? 4 MR. BOCK: Yes please. Thank you, 5 Your Honour. 6 THE COURT: So I am ready to give my 7 decision on this matter. Before I give my 8 reasons, I just want to remind everyone that 9 there is a publication ban in effect which 10 prohibits the publication or broadcast of any 11 information that could identify the 12 complainant in this matter. 13 Mr. Carpenter has pleaded guilty to having 14 sexually assaulted his 20-year-old niece back 15 in March of 2011. Today it is my 16 responsibility to sentence him for this 17 offence. This morning I heard submissions, 18 and I do want to thank both of you, Counsel, 19 for your submissions because they were very 20 thorough, they were very reasonable, and they 21 were very balanced. The book of authorities 22 that was filed by Crown counsel was also very 23 helpful. Sentencing of course is an 24 individualized process. No two cases are ever 25 the same but it is always helpful to review 26 decisions made in cases that are similar in 27 nature which require balancing the same kinds Official Court Reporters 1 1 of considerations as the ones that I have to 2 balance today in arriving at my decision. So 3 I thank you for those authorities as well. 4 Sentencing is one of the most difficult 5 tasks for a sentencing Judge precisely because 6 it requires balancing a lot of things in 7 trying to arrive at a fit sentence for the 8 crime that was committed. Judges have to take 9 into account the crime that was committed, the 10 circumstances of the person who committed it, 11 and the general sentencing principles that are 12 set out in the Criminal Code. 13 Mr. Carpenter has admitted the 14 circumstances of this offence. He has 15 admitted that on March 1st, the victim and 16 four of her friends were at his residence, 17 that hard alcohol was consumed by all, that 18 she blacked out at one point. When she woke 19 up she was in his bedroom. She tried to leave 20 but he blocked the door and then she blacked 21 out again. The next time she regained 22 consciousness she was in his bed and he was 23 having sexual intercourse with her. At one 24 point she said something to him about needing 25 to get to the grocery store before it closed. 26 She put her clothes back on, her pants and her 27 underwear, and left the house. Those are the Official Court Reporters 2 1 circumstances of the offence. 2 Mr. Carpenter, I heard, is 30 years old. 3 He is an aboriginal man who has lived his 4 whole life in Tuktoyaktuk. I will get back to 5 the fact that he is an aboriginal offender in 6 a moment because that means I have a 7 responsibility to approach his sentencing in a 8 manner that takes into account any systemic 9 factors that he may have faced as an 10 aboriginal person that may have contributed to 11 his coming into conflict with the law or may 12 justify an approach in sentencing that would 13 be different than what might otherwise be the 14 case; but I have also heard that he has 15 maintained a good work record, working at 16 various jobs in his home community. He has 17 held a variety of different jobs available to 18 him in that community and has made productive 19 use of his time. I have heard that he has 20 always lived with his father and is very close 21 to him, and that he spent considerable time 22 over the years engaged in activities out on 23 the land, hunting and fishing more 24 specifically, and that is something that he 25 enjoys. There are other aspects about his 26 personal circumstances that I will refer to a 27 little bit later in these reasons. Official Court Reporters 3 1 As for the sentencing principles, as I 2 said at the start, any sentencing requires 3 balancing all of the principles that are set 4 out in the Criminal Code as well as those 5 developed in the case law. I am not going to 6 read out sections of the Criminal Code this 7 afternoon but I have reviewed them during my 8 deliberations. Sentencing has many objectives 9 and they include discouraging the offender and 10 others from committing crimes, and denouncing 11 crimes, which means making it clear that 12 society disapproves of the conduct in 13 question. Another objective is to 14 rehabilitate offenders because ultimately that 15 is the best way to protect the public. These 16 are only some of the sentencing objectives but 17 they are the ones that come to mind most in 18 this case. 19 To achieve these objectives there are a 20 number of principles that must guide the 21 Court. Proportionality is the fundamental 22 sentencing principle and it means that a 23 sentence should be proportionate to the 24 gravity of the offence and the degree of 25 blameworthiness of the offender. There are 26 other important principles. Aggravating and 27 mitigating factors must be considered. As I Official Court Reporters 4 1 have already alluded to, Courts are to pay 2 particular attention to the circumstances of 3 aboriginal offenders when deciding whether 4 gaol terms should be imposed and, if so, when 5 deciding the length of gaol terms to be 6 imposed. Parity has to be considered. This 7 means simply that when people of similar 8 circumstances commit similar offences, the 9 sentence that they receive should be similar. 10 And, as I have already mentioned, Courts must 11 never lose sight of the objective of 12 rehabilitation because that, if it can be 13 achieved, is the best way to protect the 14 public in the long term. So all of these 15 things must be taken into account and 16 balancing of these factors I must decide what 17 a fit sentence is for this crime. 18 The sentencing submissions I heard from 19 counsel are not that far apart and this 20 demonstrates that they have both approached 21 this case in a realistic, fair and reasonable 22 way. The Crown is suggesting that a sentence 23 of three years is a fit sentence for this 24 crime and that any credit given for the time 25 that Mr. Carpenter has spent on remand should 26 be on a ratio of one for one. Defence counsel 27 has suggested that the sentence could start Official Court Reporters 5 1 off at a bit lower point than three years and 2 that once the remand time is taken into 3 account, I could impose a sentence of a high 4 end of what is referred to as the territorial 5 range. This simply means a sentence under 6 two years because if the sentencing is under 7 two years it will be served in a territorial 8 institution. If it is over two years, in 9 theory at least, it would be served in a 10 federal penitentiary in southern Canada. 11 Although some offenders are sometimes 12 permitted to serve penitentiary sentences here 13 in the north, that is something that is up to 14 Corrections and over which the Court has no 15 control. The bottom line of the Crown's 16 position is that I impose a sentence of 17 28 months whereas the Defence position would 18 be something close to two years but under 19 two years. 20 The kind of incident that I heard about 21 this morning, and that I just referred to when 22 I summarized the facts, is extremely prevalent 23 in the Northwest Territories. I have had 24 occasion to comment on this, unfortunately, 25 several times in several different cases and 26 most recently, just last week, when I gave my 27 sentence in the case of R v. Lafferty 2011 Official Court Reporters 6 1 NWTSC 60, which was a case arising from the 2 community of Behchoko. I have said then, and 3 I say again, that it boggles the mind how 4 prevalent this type of crime is. It has been 5 referred to in various ways by this Court over 6 the years. Words like "epidemic" and 7 "disease" have been used, and while some might 8 think this is a melodramatic or exaggerated 9 way to describe it, I do not think it is. The 10 sad reality is that these types of facts, the 11 sexual assault of a woman who is sleeping or 12 passed out, is a common occurrence in this 13 jurisdiction. The prevalence of this offence 14 is referred to in almost every decision that 15 is included in the Crown's book of 16 authorities. The Court referred to it at 17 paragraph 3 in R v. Kodzin [2011] N.W.T.J. No. 18 8; at paragraph 14 in R v. Beaverho [2009] 19 N.W.T.J. No. 59; at paragraph 19 in R v. Lomen 20 [2007] N.W.T.J. No. 69; at paragraph 17 in 21 R v. Bird [2005] N.W.T.J. No. 62; and finally, 22 our Court of Appeal recently commented about 23 it as well at paragraph 16 in the case of 24 R v. A.J.P.J. 2011 NWTCA 2, which was decided 25 in January of this year, and talking about the 26 issue the Court of Appeal said, "sexual 27 assaults committed against young women while Official Court Reporters 7 1 they are either passed out or asleep has been 2 and continues to be a serious problem in this 3 jurisdiction". And as I say, there are many 4 many more sentencing decisions of this Court 5 where similar comments have been made noting 6 the prevalence of this type of crime in our 7 communities all over this jurisdiction. 8 This is a crime that causes great harm. 9 As noted by Crown counsel in his submissions, 10 the harm to victims is very real. Sometimes 11 we hear about it in general terms, other times 12 victims describe it in very compelling ways in 13 Victim Impact Statements. The Victim Impact 14 Statement prepared by the victim in this case, 15 which was made an exhibit, is one of those 16 compelling ones. It talks about impacts which 17 unfortunately are very common for people who 18 are sexually abused. There is loss of self 19 esteem, loss of one's sense of personal 20 safety, fear of going out, fear of being 21 judged or criticized or harmed by others, a 22 sense of helplessness and depression, a deep 23 mistrust for others even people who are loved 24 ones and that victims used to be close to, 25 feelings of shame, loss of sleep, nightmares. 26 These are things that some victims have to 27 live with for many years after the events. It Official Court Reporters 8 1 is also true that the harm often extends to 2 others, to family members, to the community as 3 a whole, especially in a small community such 4 as the one where these events occurred. 5 The law is clear in the Northwest 6 Territories that because of the prevalence of 7 this type of crime, because of how serious it 8 is and because of the harm it does, the 9 paramount sentencing principles for the Court 10 are deterrence and denunciation, and it has 11 been consistently held, and recently 12 reaffirmed in the A.J.P.J. decision, that for 13 a sexual assault involving full intercourse 14 the courts should start considering a range of 15 three years imprisonment and then increase or 16 decrease the sentence to give effect to any 17 mitigating factors or aggravating factors that 18 are present. 19 There are aggravating factors in this 20 case. The first is that the victim was in an 21 especially vulnerable state because she was 22 passed out. Our courts have recognized that 23 this is aggravating. Next, there was an 24 element of breach of trust here because Mr. 25 Carpenter is the victim's uncle. The home in 26 question, I am told, was also the home where 27 her grandfather lived. This is a place where Official Court Reporters 9 1 she should have felt safe and been safe. This 2 is a place where she should have been able to 3 expect protection and not abuse. The third 4 aggravating factor is the criminal record that 5 Mr. Carpenter has. It does not include any 6 convictions for sexual misconduct but it does 7 include entries for crimes of violence, most 8 notably the last two entries which are for 9 assault causing bodily harm. The last 10 conviction was in July 2010 and the sentence 11 imposed was six months in gaol. So as noted 12 by counsel, Mr. Carpenter had not been out of 13 custody for that long before he committed this 14 offence in March 2011. 15 I must however be careful when dealing 16 with the criminal record as an aggravating 17 factor. It is an aggravating factor and it is 18 relevant to sentencing but it is important 19 that it not be overemphasized because it is 20 important that Mr. Carpenter not be punished 21 over and over again for past crimes for which 22 he has already served his sentences. So it is 23 simply a factor. In my view those are the 24 aggravating factors: the added vulnerability 25 of the victim because she was passed out, the 26 element of breach of trust, and the criminal 27 record. Official Court Reporters 10 1 As far as things that mitigate sentence, 2 Mr. Carpenter has been in custody for some 3 time on this charge. He was initially 4 released on a recognizance but that 5 recognizance was cancelled as a result of an 6 alcohol-related breach. Counsel advised that 7 there are eight months of remand that are 8 attributable to this charge and that are to be 9 taken into consideration on this sentencing. 10 Section 719 of the Criminal Code places limits 11 on a sentencing Judge's discretion as far as 12 how much credit can be given to someone for 13 remand time. Under certain circumstances, 14 credit can be given on a ratio of one and a 15 half for one but where a person is on remand 16 as a result of having breached release 17 conditions, my understanding of the 18 combination of subsections 719 (3) and (3.1) 19 is that I am limited to credit to a maximum 20 ratio of one for one. 21 Without doubt, the most significant 22 mitigating factor here is Mr. Carpenter's 23 guilty plea. People charged with criminal 24 offences are presumed innocent and they have 25 the right to have a trial. They have the 26 right to put the Crown to the proof of its 27 case. Those who choose to exercise that right Official Court Reporters 11 1 should never ever be punished for having done 2 so, but those who forego this right, those who 3 accept responsibility for crimes that they 4 have committed, deserve to get credit for 5 that, and this is so for a number of reasons. 6 One of them is that it is one way a person can 7 show they truly are sorry for what they have 8 done. Accepting responsibility and foregoing 9 a right to have a trial is a meaningful way a 10 person can show that they are sorry. Another 11 reason is that trials take time and they are 12 costly. This court holds jury trials in most 13 communities in this jurisdiction so there are 14 significant monetary costs attached to this, 15 and there is also a real human cost. A jury 16 trial can be quite divisive in a community. 17 It can be very hard on those community members 18 who are chosen to sit as jurors. 19 And finally, one very important reason why 20 a guilty plea has a strong mitigating effect 21 is that it spares the victim of the crime from 22 having to come to a courtroom and talk about 23 what happened. This Court sees enough people 24 testify at trials, particularly sexual assault 25 complainants, and has observed time and time 26 again how painful and difficult it sometimes 27 is for those people to talk about very Official Court Reporters 12 1 personal things, very traumatic events and be 2 asked numerous questions about every detail of 3 those events. Sparing someone from that is 4 significant. 5 In this case I am told by Crown counsel 6 that the preliminary hearing was a difficult 7 experience for this complainant. Mr. 8 Carpenter was there at the preliminary 9 hearing. Seeing her struggle through her 10 testimony, he could have done something 11 entirely different than what he did. He could 12 have sat back and just had his trial hoping 13 she would struggle even more or maybe even not 14 want to testify again and hope to get away 15 with what he did. But he did not do that; he 16 did just the opposite. He wanted to plead 17 guilty and it was his initiative, I am told, 18 at his initiative that the steps were taken to 19 have this matter brought forward to be dealt 20 with before a trial date was set. 21 The other thing a guilty plea does, and I 22 think this too is very important is this: it 23 removes any uncertainty about the outcome of 24 the case of course, but it also removes 25 lingering uncertainty quite apart from the 26 court process itself. What I mean is this: 27 When accusations like this are made, often Official Court Reporters 13 1 there are people who have a very hard time 2 believing that their loved one could have done 3 something like this. Complainants may get 4 accused of having made everything up, accused 5 of lying, and in fact there are references to 6 this in the Victim Impact Statement that was 7 filed in this case. And the reality is that 8 even when there is a trial and even when the 9 person is found guilty, there can always be 10 people who will continue to say that it cannot 11 be true and who will continue to blame the 12 victim instead of holding the offender 13 responsible. 14 But when a person pleads guilty, when a 15 person does what Mr. Carpenter did, it removes 16 that because then he says it himself that he 17 did do this, that he is responsible, and that 18 the victim is not lying. And in my opinion, 19 especially in a small community with large 20 families and lots of connections on both 21 sides, this is very, very important. It can 22 be the start of a healing process for all 23 involved. These are not easy things to 24 recover from for families and for communities, 25 but acknowledgment of responsibility on the 26 part of the wrongdoer is an important first 27 step and it is a step that only that person Official Court Reporters 14 1 can take. 2 So although this was not a guilty plea at 3 an early opportunity and although the 4 complainant was not spared completely from 5 having to testify because she had to testify 6 at the preliminary hearing, Crown counsel has 7 fairly acknowledged that Mr. Carpenter should 8 receive significant credit for his guilty 9 plea, and I completely agree for all those 10 reasons I have just mentioned. I am 11 satisfied, because of the plea, but also 12 because of the letter that he wrote that was 13 read by his counsel this morning, and because 14 of what he told me himself when he had an 15 opportunity to speak to the Court directly 16 this morning, that he is truly remorseful for 17 what he did. I also accept that some of the 18 things that he has already done, some of the 19 steps that he has already taken such as 20 attending AA meetings, thinking about what he 21 has done, thinking about what he needs to do 22 to ensure that nothing like this happens 23 again, are important steps toward his 24 rehabilitation. I also accept that the time 25 he has spent in custody already has been 26 isolating for him particularly because of the 27 death of his aunt and the death of his nephew Official Court Reporters 15 1 which occurred while he was in custody, and 2 also because he has always lived with his 3 father, is close to him, and was essentially 4 cut off from him. Matters being made more 5 complicated because Mr. Carpenter's father 6 does not have a phone. 7 I have also taken into account what I have 8 heard about his good work history. It seems 9 that when Mr. Carpenter stays away from 10 alcohol he has been able to be a productive 11 member of his community. He has spent time 12 engaged in traditional fishing, trapping and 13 hunting activities, he has helped elders in 14 his community. He is obviously quite capable 15 of being a contributing member of his 16 community, and all those things are in his 17 favour. There are things that give reason to 18 have hope that when he finishes serving his 19 sentence he can make the changes that he needs 20 to make to not be in trouble with the law 21 again and more importantly to not harm other 22 people again. 23 I have mentioned the fact that I must take 24 into account the fact that Mr. Carpenter is an 25 aboriginal offender. He does not appear to 26 have faced some of the same systemic problems 27 and dysfunction that we often hear about in Official Court Reporters 16 1 court. His was a family where alcohol was not 2 abused and there was no violence within the 3 family. But in any event, as I have already 4 said, this Court often deals with sentencing 5 of aboriginal men who have committed this type 6 of crime, and given the seriousness of these 7 offences a significant gaol term is usually 8 unavoidable. The importance of upholding the 9 dignity and personal safety of all members of 10 the community is an important value in both 11 aboriginal and non-aboriginal communities, so 12 I do not think it makes a significant 13 difference in the circumstances of this case 14 that Mr. Carpenter is an aboriginal offender. 15 In the final analysis, as I have already 16 said the submissions I have heard from counsel 17 are not that far apart. So the issue for me 18 really boils down to whether the sentence 19 should be over two years or not. Many 20 aboriginal offenders who receive sentences 21 higher than two years are able to serve their 22 sentences in a territorial facility here in 23 the Northwest Territories but that is 24 something that the court has no control over. 25 It is entirely up to Corrections. 26 I do not think that the Crown is out of 27 line at all in seeking a gaol term of Official Court Reporters 17 1 three years. That is a perfectly reasonable 2 range of sentence to be seeking for this type 3 of offence. At the same time, as I have said, 4 if I did that and gave eight months credit for 5 the remand time, the total sentence would be 6 28 months, two years and four months. On 7 balance I think that this is close enough to 8 two years, that it is an appropriate case for 9 me to exercise a lot of restraint and keep the 10 sentence to the territorial range, and this is 11 for a few reasons. 12 The first is because of the significant 13 mitigating impact that I think should come 14 from the guilty plea and the expressions of 15 remorse I heard this morning; secondly, 16 because of the efforts that Mr. Carpenter has 17 already made during his time at the North 18 Slave Correctional Centre to attend AA 19 meetings and start building a support network 20 to address his issues with alcohol and 21 whatever issues surface when he is under the 22 influence of alcohol; thirdly, because of the 23 potential isolation that he would experience 24 in the southern penitentiary if he ended up 25 being sent there; that isolation would be even 26 greater than what he already has experienced 27 and I think would be counterproductive as far Official Court Reporters 18 1 as his eventual rehabilitation; and finally, 2 because of some of the tragic events that have 3 happened in his family while he was on remand, 4 and here I refer again to the death of his two 5 relatives. Sometimes, there are punishments 6 that life hands out that are worse than 7 anything the criminal justice system can do. 8 I think that the hardship that must have been 9 experienced as a result of those events while 10 Mr. Carpenter was on remand is something that 11 I am entitled to consider when deciding what a 12 fit sentence is for this offence. 13 So these reasons leave me to conclude that 14 I do not need to impose a further gaol term 15 that is in excess of two years, although as I 16 have already said, the Crown's position is 17 well within the range of sentences that could 18 be imposed on the whole of the circumstances. 19 So I am going to deal with various orders 20 that the Crown has sought. First there will 21 be a Firearms Prohibition Order pursuant to 22 Section 109 of the Criminal Code that will 23 start today and expire ten years from the time 24 Mr. Carpenter is released. Any firearms are 25 to be surrendered forthwith, and I will, 26 pursuant to Section 113 of the Code, authorize 27 the chief firearms officer to issue an Official Court Reporters 19 1 authorization, when the time comes, on 2 conditions to be set by the chief firearms 3 officer, to permit Mr. Carpenter to possess a 4 firearm for employment or sustenance purposes. 5 I grant this authorization because no firearms 6 were used in the commission of this offence. 7 Nothing on Mr. Carpenter's criminal record 8 appears to be firearms related. Sexual 9 assault of course is a crime of violence but 10 based on the admitted facts, this was not a 11 case where Mr. Carpenter used force against 12 the complainant against her body apart from 13 what is inherent in the act of intercourse. I 14 am concerned about the part of the facts where 15 he prevented her from leaving but this is not 16 a case where there was gratuitous violence or 17 extraneous violence. I am also of course 18 taking into consideration that in my view 19 allowing him to resume his hunting, trapping, 20 fishing activities on the land is consistent 21 with his rehabilitation and the region where 22 he lives and where he is likely to carry out 23 those activities is one where firearms are 24 essentially essential to preserve one's safety 25 while one is out on the land. 26 The next order will be a DNA Order. Now I 27 did note from the criminal record that it Official Court Reporters 20 1 appears that Mr. Carpenter's DNA is already in 2 the data bank but it is up to peace officers 3 tasked with executing the order to verify that 4 this is the case. So Mr. MacPherson, I will 5 just ask you to make sure to bring that to 6 their attention. I am referring to 7 Section 487.07 (1) paragraph 2 of the Criminal 8 Code. It used to be that the court could not 9 make the order when someone's DNA was already 10 in the data bank and then that was changed and 11 now the orders are made but it is up to the 12 people executing them to make sure they do not 13 execute them if the DNA is already in the data 14 bank. So I just thought I would mention that. 15 The third order will be an order that 16 Mr. Carpenter comply with the provisions of 17 the Sexual Offender Information Registry Act. 18 This will be for a period of 20 years which is 19 the minimum under the Criminal Code. 20 I will also make an order for the return 21 of any exhibits that were seized to their 22 rightful owner if that is appropriate, 23 otherwise exhibits are to be destroyed at the 24 expiration of the appeal period of course. 25 And finally, given the length of the gaol 26 term I have imposed today, I am not going to 27 order that Mr. Carpenter pay the victim of Official Court Reporters 21 1 crime surcharge. I am satisfied that this 2 would result in hardship. 3 Mr. Carpenter, can you stand up please. 4 Mr. Carpenter, you have heard what I have 5 said. For the crime of sexual assault that 6 you have pleaded guilty to, I am sentencing 7 you to a further gaol term of two years less 8 one day which means that you will remain in 9 the north for sure. I am not going to put you 10 on probation when you are released. Again, I 11 heard what your lawyer said and that you want 12 a fresh start but that means that when you are 13 released it will be up to you to find those 14 support networks and to get the help you think 15 you need because there will not be a probation 16 officer calling you up and making appointments 17 with you, so it will be up to you. 18 You can sit down. 19 I just hope that you will be able to serve 20 your sentence, make the most of the help that 21 you can find in the gaol with AA, with other 22 programs that they might have and that you 23 will be able to make that fresh start when you 24 are released. 25 Madam Clerk, the Warrant of Committal 26 should say that this sentence is 32 months 27 less one day, eight months credit given for Official Court Reporters 22 1 the eight months of remand, so that the 2 sentence, gaol term actually imposed is 3 two years less one day. 4 Is there anything I have overlooked, 5 Counsel? 6 MR. BOCK: No, thank you, Your 7 Honour. 8 THE COURT: Anything from the Crown? 9 MR. MACPHERSON: Thank you, Your Honour. 10 THE COURT: All right. I thank you, 11 both of you again, Counsel, for your 12 submissions. 13 __________________________________________________ 14 PROCEEDINGS CONCLUDED 15 __________________________________________________ 16 17 18 Certified to be a true and accurate transcript pursuant 19 to Rules 723 and 724 of the Supreme Court Rules, 20 21 22 23 "No Signature Available" 24 ____________________________ 25 Darlene Sirman, Court Reporter 26 27 Official Court Reporters 23
You are being directed to the most recent version of the statute which may not be the version considered at the time of the judgment.