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Abstract: Transcript of the Reasons for Sentence
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R. v. Martino, 2013 NWTSC 53 S-1-CR2013000044 IN THE SUPREME COURT OF THE NORTHWEST TERRITORIES IN THE MATTER OF: HER MAJESTY THE QUEEN - vs. - DUSTIN MARTINO _________________________________________________________ Transcript of the Reasons for Sentence of The Honourable Justice L. A. Charbonneau, at Yellowknife in the Northwest Territories, on June 28th A.D., 2013. _________________________________________________________ APPEARANCES: Mr. A. Godfrey: Counsel for the Crown Mr. S. Petitpas: Counsel for the Accused Official Court Reporters 1 THE COURT: Earlier this week, 2 Mr. Martino pleaded guilty to a charge of 3 break and enter and commit robbery. I heard 4 sentencing submissions from Crown and defence. 5 I have now had the opportunity to consider 6 those submissions and the authorities that 7 were filed. 8 Counsel have presented a joint submission 9 on this matter. That joint submission is that 10 a sentence of imprisonment of two years less a 11 day be imposed, to be followed by a period of 12 probation. Counsel have left the duration of 13 the probation and the specific conditions in 14 the Court's discretion although they have each 15 made representations about what types of 16 conditions might be useful. 17 It is well established in law that a joint 18 submission must be given very careful 19 consideration by a sentencing Judge. Unless 20 that joint submission is clearly unreasonable, 21 it should be followed. Sentencing Judges 22 always retain the ultimate discretion to 23 decide what is a fit sentence for any given 24 crime. But where a joint submission is 25 presented and that joint submission is not an 26 unfit sentence having regard to all the 27 circumstances, a sentencing Judge should Official Court Reporters 1 1 follow it. 2 In this case, and for the reasons that 3 follow, I have decided to accept the joint 4 submission that was presented. 5 The circumstances of this offence were 6 read into the record earlier this week at the 7 sentencing hearing but I will refer to them 8 again to put my decision in context. 9 On January 9th, 2013, the accused and two 10 other individuals were drinking at a residence 11 in Hay River. At some point after midnight 12 they went to a nearby residence to buy a 13 bottle of liquor. They then returned from 14 where they had come from to drink the liquor. 15 There was then a discussion about going 16 back to the same house to steal more liquor. 17 Apparently this was the idea of one of the 18 other individuals who was there. Mr. Martino 19 tried to dissuade him from this plan but 20 eventually went along with it. 21 The two of them returned to the residence. 22 They armed themselves with a piece of wood and 23 a black airgun that looked like a real 24 handgun. The other man kicked in the door to 25 the residence. Mr. Martino stood at the door 26 and pointed the airgun at two people who were 27 sitting in the livingroom of the residence Official Court Reporters 2 1 watching television. The other man went to 2 the bedroom where the owner of the residence 3 was sleeping. He took a black suitcase from 4 that bedroom and then he and Mr. Martino left. 5 As it turned out, that suitcase was full of 6 clothes. Mr. Martino threw the airgun in the 7 garbage. 8 The matter was reported to the police and 9 Mr. Martino was cooperative from the start. 10 He gave a full confession about his 11 involvement in this incident. He also 12 testified at the trial of the other individual 13 charged with this offence. I heard that that 14 matter is still pending in the Territorial 15 Court of the Northwest Territories because 16 there was insufficient time to complete it on 17 the date that the trial started but 18 Mr. Martino has testified at that trial. 19 Mr. Martino is 27 years old. He was born 20 in Edmonton. I heard from his counsel that 21 his parents separated when he was young. His 22 father lives in Edmonton and his mother lives 23 in Oshawa, Ontario, and he has spent some time 24 in both places as he grew up. 25 I heard that he had a difficult 26 upbringing, frequently being exposed to family 27 violence in his mother's home between his Official Court Reporters 3 1 mother and her common-law partner. I also 2 heard that he was in and out of foster homes 3 and group homes during his teenage years. 4 Mr. Martino had not been living in Hay 5 River for very long when this happened. He 6 has two children who live with their mother in 7 Oshawa and he had been in a relationship for 8 some time with a woman who lives in Hay River 9 and who has two children of her own. 10 Mr. Martino himself was living in Alberta, as 11 I understand, when this relationship started, 12 but he moved to Hay River in November 2012; 13 and there, he worked for a plumbing and 14 heating company and he was still employed in 15 that company when this incident happened. 16 Before that, he appears to have been fairly 17 steadily employed at various jobs in the 18 various places where he has lived. I heard 19 that his plans, when he finishes serving 20 whatever sentence is imposed on him today, is 21 to continue living in Hay River and continue 22 with that relationship. 23 Mr. Martino has a criminal record which 24 includes some convictions that are related to 25 the one that I must sentence him for today. 26 There are convictions for property offences 27 and several convictions for breaching various Official Court Reporters 4 1 types of court orders. The last entry on his 2 record is from September 2006. He has been 3 sentenced to jail terms in the past but never 4 to very long jail terms. 5 He was arrested on this matter on January 6 9th, 2013, and he has been in custody since. 7 Crown and defence agree that under the 8 relevant provisions of the Criminal Code, and 9 given the reasons given by the Court at the 10 time his detention was ordered, it is only 11 open to me to give him credit for the time 12 that he has spent on remand on a one for one 13 ratio, that is, one day of credit for each day 14 spent in pre-trial custody. 15 This offence, objectively speaking, is a 16 serious one. Breaking and entering a person's 17 dwelling house is always a serious matter. 18 Doing so to commit robbery, which in itself is 19 also a very serious offence, makes it all the 20 more significant. This offence is punishable 21 by a maximum of life imprisonment, which shows 22 how serious Parliament considers it to be. 23 This also recognizes the sanctity of 24 everyone's home - the fact that it is the 25 place where every person should feel the 26 safest; violating that is treated by the law 27 as a very serious crime. Official Court Reporters 5 1 Various Courts have recognized the 2 seriousness of this type of conduct and, in 3 particular, in relation to breaking and 4 entering into dwelling houses and committing 5 serious crimes in there, it has given rise to 6 the judicially-created concept of "home 7 invasion robbery". 8 Home invasion robbery is not a separate 9 offence that exists as such in the Criminal 10 Code. It is simply the way that the Courts 11 have used to identify that specific category 12 of break and enter in a dwelling house which 13 calls for very severe penalties. Appellate 14 Courts in different jurisdictions have 15 identified starting points and ranges of 16 sentences to guide the exercise of sentencing 17 Judges' discretion when dealing with offences 18 like this. These starting points reflect the 19 very serious hallmarks of these types of 20 crimes. 21 But even when a case does not involve all 22 of those hallmarks, the fact remains that to 23 break into a person's home for the purposes of 24 committing an offence, and actually committing 25 a serious offence in that dwelling house, can 26 always be expected to be treated very 27 seriously by the Courts. Official Court Reporters 6 1 In this case the house that was broken 2 into was one where illegal activities, namely 3 bootlegging, were taking place. But that does 4 not take away the seriousness of the offence. 5 Obviously bootleggers break the law and 6 can themselves face consequences for that. In 7 some communities bootlegging causes a lot of 8 harm actually and in those rare occasions 9 where bootleggers are prosecuted and 10 convicted, Courts tend to treat those offences 11 quite seriously. But that fact is not 12 something that should ever be understood to 13 give anyone license to turn around and commit 14 crimes against the people who engage in those 15 activities or break into the premises where 16 those activities take place. The fact that a 17 person engages in the illegal activity does 18 not give other people the right to break the 19 law themselves. That is not how a civilized 20 society operates. 21 There are several aggravating factors in 22 this case. 23 The first is a statutorily aggravating 24 factor. By this, I mean the Criminal Code 25 specifically says it is an aggravating factor; 26 that is, the fact that Mr. Martino knew that 27 there were people in the house and used Official Court Reporters 7 1 threats of violence to effect his purpose, 2 along with his co-accused. Section 348.1 of 3 the Criminal Code says that in itself is an 4 aggravating factor. And I have to say that 5 even if the Criminal Code did not say so, I 6 expect it would be in any event considered an 7 aggravating factor. 8 The second aggravating factor is the use 9 of the airgun. It looked like a handgun and 10 the victims probably thought it was a handgun. 11 It is not difficult to imagine how frightening 12 it would be to be sitting in a house, have the 13 door kicked in, two men barge in and one 14 pointing what looks like a firearm at you. 15 The introduction of a weapon in this kind of 16 this situation not only adds to the impact on 17 the victims but it always creates a very real 18 risk of escalation of the seriousness of the 19 matter and of the violence. People thinking 20 this is a real firearm might react in all 21 sorts of ways trying to defend themselves. 22 And it goes without saying that much more 23 serious consequences can flow from that. 24 The third aggravating factor was the 25 planning element in this. I accept this was 26 not a long, thought-out plan. I accept it was 27 not Mr. Martino's plan. And I accept that he Official Court Reporters 8 1 was in an intoxicated state when he made the 2 sad decision to agree to join in in that plan. 3 But still, it was not a completely spontaneous 4 act either. It involved some discussion, 5 making a decision, the individuals arming 6 themselves with weapons, and ultimately 7 carrying out their plan. 8 The fourth aggravating factor is the 9 criminal record because it does include 10 convictions for property and weapons offences 11 which are not unrelated to this one. But, I 12 agree with Mr. Martino's counsel that the 13 record does not disclose a persistent pattern 14 for the type of conduct (he displayed in this 15 incident). I also recognize that there is a 16 gap in the criminal record and that the types 17 of offences that appear on it and the 18 sentences that were imposed do not suggest 19 that these offences were at the higher end of 20 the spectrum of seriousness. In fact, the 21 offence that I am sentencing Mr. Martino for 22 today is by far the most serious one that will 23 appear on his criminal record. And hopefully, 24 it will be the last. 25 As far as mitigating factors, the main one 26 is that Mr. Martino has pleaded guilty. He 27 has also waived his preliminary hearing so Official Court Reporters 9 1 none of the witnesses involved in this had to 2 testify to prove the charge against him. 3 This willingness to take responsibility 4 manifested itself early on in the process. 5 When this matter was investigated, he gave a 6 statement to the police and he admitted his 7 involvement. At his first appearance, I 8 heard, he conveyed an intention to plead 9 guilty to this. And he cooperated with the 10 authorities further in testifying in the trial 11 of his co-accused - something that not 12 everyone is prepared to do. 13 Through counsel, he has expressed remorse 14 and I accept that he is remorseful. I also 15 agree that, based on everything that I have 16 heard, his guilty plea should be given the 17 maximum mitigating impact that it can have. 18 There are other things that were mentioned 19 by his counsel which, in my view, are more 20 reflective of the absence of what would 21 otherwise be an aggravating factor. For 22 example, if he had been the leader or 23 instigator of this, that would be aggravating. 24 If his criminal record was more significant, 25 it would be aggravating. If the matter had 26 been planned a long time in advance with a lot 27 of sober thought, that would also make it more Official Court Reporters 10 1 serious. 2 Some cases were submitted by the Crown, 3 and I have reviewed them all. 4 I think the main principles that emerge 5 from those cases are, first, that for this 6 type of offence, the sentencing principles 7 that are the most important are deterrence and 8 denunciation. Second, when a home is broken 9 into and an offence is committed in that home, 10 particularly where it involves violence or 11 threats of violence, a significant jail term 12 must be imposed to address those sentencing 13 principles. Third, if the hallmarks of what 14 has been termed "home invasion robberies" (in 15 cases such as R. v. Matwiy [1996] A.J. 134, 16 (Alta CA), R. v. Reader [2008] M.J. No. 120 17 (Man CA), or R. v. Bernier [2003] B.C.J. No. 18 466 (BCCA)) are present, significant starting 19 points are engaged to address the fundamental 20 sentencing principle of proportionality. 21 Matwiy talks about a starting point of 22 eight years; Leader talks about a starting 23 point of seven to ten years. It appears that 24 the starting point adopted by the British 25 Columbia Court of Appeal is slightly lower 26 than that but still, it also signals the 27 requirement for a very significant jail term Official Court Reporters 11 1 to be imposed. This is also reflected in 2 cases from this jurisdiction as demonstrated 3 in the case of R. v. Kakfwi and Lennie 2006 4 NWTSC 8 quoted by Crown counsel during his 5 submissions. In that case this Court referred 6 to Matwiy, as well as to other another case 7 from this jurisdiction, R. v. Payne 2005 NWTSC 8 42, and quoted the starting points with 9 approval, saying that but for the guilty pleas 10 this is the range of sentence these offenders 11 could have expected to receive. 12 The same can be said for this case. 13 Kakfwi and Lennie involved two people 14 breaking into a residence for the purpose of 15 stealing alcohol - much like this case. In 16 that case, one of the men held a knife to the 17 occupant's throat. Here, we have an airgun 18 pointed at people, admittedly creating less of 19 an actual risk of injury but likely every bit 20 as terrifying for those who the gun was 21 pointed at. Mr. Kakfwi had a significant 22 criminal record and he received a three year 23 sentence, even though he pleaded guilty. 24 Mr. Lennie was much younger and his personal 25 circumstances were more favourable. He 26 received a sentence of two years. 27 Given all of this, the suggested sentence Official Court Reporters 12 1 of two years less a day, I think, can be 2 characterized as quite lenient. It is at the 3 very low end of what people can expect to be 4 sentenced for when they commit these types of 5 of crimes, even when they plead guilty. But I 6 cannot say, based on the cases that have been 7 submitted, that the sentence is outside the 8 range of what can be considered and that is 9 why I have decided to follow it. 10 The criminal record and the numerous 11 breach convictions that appear on it made me 12 reluctant at first to have this sentence 13 include a term of probation. But I recognize 14 that the gap in the criminal record may be an 15 indication that Mr. Martino has decided to 16 change his ways and may be more responsive now 17 to being on probation than he has been in the 18 past as far as following court orders. 19 Alcohol was a factor in the commission of 20 this offence and whether Mr. Martino considers 21 himself to have an actual alcohol problem or 22 not, I am of the view that he needs to give 23 that question some careful thought. 24 Drinking alcohol is one thing; getting 25 heavily intoxicated even is one thing. But 26 behaving in this manner when intoxicated shows 27 a level of loss of control and loss of Official Court Reporters 13 1 judgment that, in my respectful view, should 2 make Mr. Martino very scared to consume 3 alcohol. 4 I infer from what his counsel has said 5 that Mr. Martino feels that alcohol was a 6 contributing factor to the bad decision he 7 made that night, although I also note he 8 accepts responsibility for what he did. But I 9 infer that he feels he would have made perhaps 10 a different decision if he had been sober. 11 That fact alone, the fact that he did choose 12 to get himself involved in something so 13 serious while intoxicated, raises some issues. 14 He has indicated through his counsel that 15 he is willing to abide by a no drinking 16 condition, and I think that is a good idea. 17 As I said during submissions, it is not 18 something that I do as a matter of course and 19 it is not something that I do unless I hear 20 from the offender that they think they can 21 comply with it and they wish that type of a 22 condition to be part of probation. But I 23 think it is a good idea in this case. And I 24 also think it would be a good idea for 25 Mr. Martino to explore a bit more the nature 26 of his relationship with alcohol. The reality 27 is that with this conviction now on his Official Court Reporters 14 1 record, he will not be able to expect or hope 2 for leniency in the future if he ever finds 3 himself involved in this type of conduct 4 again. 5 Can you stand up, please, sir. 6 Mr. Martino, for the reasons that I have 7 given, I am going to go along with the joint 8 submission that your lawyer and the Crown 9 counsel have presented. I hope that you do 10 understand it is a very lenient sentence, 11 considering what you did. I hope I am the 12 last Judge who has to sentence you for 13 anything because if there is a next time, that 14 Judge may not have the same options as those 15 that I have today dealing with you. I hope 16 that you understand that. 17 THE ACCUSED: I do. 18 THE COURT: I am imposing a sentence of 19 two years less one day. And because you have 20 been in pre-trial custody for five months and 21 three weeks, you are going to get credit for 22 that time on a one-for-one basis which is all 23 that I am, in law, permitted to give you 24 credit for. That will leave 18 months and one 25 week to serve. 26 You can sit down. 27 THE ACCUSED: Thank you. Official Court Reporters 15 1 THE COURT: This will be followed by a 2 period of probation for one year. For this 3 period, the conditions are going to be that 4 you keep the peace and be of good behavior; 5 that's fairly simple. Within 48 hours of your 6 release, you are to report to Probation 7 Services, and then they will assign a 8 probation officer to you, and thereafter you 9 will report as directed by your probation 10 officer. I am going to include a condition 11 that you take counselling as directed by your 12 probation officer. What I expect will happen 13 is that this will be the subject of 14 discussions between the two of you. I don't 15 think they tend to make people take 16 counselling that the person really doesn't 17 want to take but I encourage you to think 18 about whatever is suggested and think about 19 whether it might help you. Ultimately this is 20 for your own good. And I will include a 21 condition that you abstain absolutely from the 22 possession and consumption of alcohol for that 23 full year. It is a long time and if you reach 24 a point, and Mr. Petitpas can explain this to 25 you as well in more detail, if you reach the 26 point, for whatever reason, where that 27 condition feels like one that you cannot Official Court Reporters 16 1 comply with, you need to ask the Court to vary 2 it. I don't know what would happen, it would 3 depend on the circumstances, but you cannot 4 just stop following that condition because 5 then it is an offence in itself to breach a 6 probation order. So you have to take steps to 7 get that changed if it becomes too difficult 8 for you for whatever reason. And the last 9 condition is that you will have no contact 10 directly or indirectly with Leon Durocher, 11 Joanne Martel and Walter Beaulieu. I realize 12 that Hay River is not a large town but that 13 type of condition places the onus on you to 14 remove yourself from the situation if there is 15 a risk that you might have contact with them. 16 There will also be a DNA order; it is 17 mandatory under the Criminal Code for this 18 type of offence. 19 There will be a firearms prohibition 20 order, also mandatory under the Criminal Code 21 for this type of offence. It will commence 22 today and it will expire ten years from your 23 release from imprisonment. Do you have any 24 firearms? 25 THE ACCUSED: No. 26 THE COURT: All right, so the order will 27 say that you are to surrender whatever you Official Court Reporters 17 1 have forthwith. If you don't have any, that's 2 not a problem. 3 THE ACCUSED: Okay. 4 THE COURT: Finally, given that you have 5 been on remand for a number of months and 6 because I am imposing the jail term that I am 7 imposing today, I am going to waive the victim 8 of crime surcharge because I am satisfied that 9 imposing one would result in hardship. 10 I am not going to make an order dealing 11 with exhibits because I know that there is 12 this other matter that is still ongoing so I 13 am just asking, Mr. Godfrey, that when that 14 other matter is concluded that the Crown 15 ensure that whatever needs to be ordered in 16 relation to the exhibits is. But for the 17 purposes of this case, I will not make any 18 specific order. 19 Is there anything, counsel, that I have 20 overlooked or that needs to be clarified? 21 MR. GODFREY: I don't believe so, Your 22 Honour, thank you. 23 MR. PETITPAS: No, Your Honour. 24 THE COURT: All right. 25 MR. PETITPAS: Your Honour, just one last 26 thing. Would the Court be inclined to make a 27 judicial recommendation? Official Court Reporters 18 1 THE COURT: Yes, thank you for reminding 2 me, Mr. Petitpas; that is something that I 3 completely forgot. 4 Defence counsel had asked that the warrant 5 of committal be endorsed with the judicial 6 recommendation that Mr. Martino serve his 7 sentence in the facility at Hay River because 8 that is where his spouse is and that is where 9 his connections are, and I am going to make 10 that endorsement. It is not something that I 11 can order, it is not up to me, but the 12 recommendation will be there on the warrant of 13 committal that he be allowed to serve his 14 sentence in Hay River, assuming that it is 15 deemed appropriate for his needs. It then 16 will be up to the authorities to make the 17 decision. 18 Thank you for reminding, Mr. Petitpas. I 19 am just going to sign the DNA order now. 20 We will stand down briefly, counsel. 21 There is another matter on the docket this 22 afternoon that I am not involved with, so we 23 will stand down and court will reconvene 24 shortly. 25 Thank you, counsel, for your submissions. 26 -------------------------------------------- 27 Official Court Reporters 19 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 ____________________________ 10 Lois Hewitt, Court Reporter 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 Official Court Reporters 20
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