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Abstract: Transcript of Reasons for Sentence
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R. v. Kenny, 2014 NWTSC 3 S-1-CR-2013-000080 IN THE SUPREME COURT OF THE NORTHWEST TERRITORIES IN THE MATTER OF: HER MAJESTY THE QUEEN - v - KEVIN KENNY Transcript of Reasons for Sentence delivered by The Honourable Justice S. H. Smallwood, in Yellowknife, in the Northwest Territories, on the 2nd day of October, 2013. APPEARANCES: Mr. M. Lecorre: Counsel on behalf of the Crown Mr. S. Petitpas: Counsel on behalf of the Accused ------------------------------------- Charge under s. 268 C.C. 1 THE COURT: Kevin Kenny has entered a 2 guilty plea to an aggravated assault committed on 3 April 21st, 2013. It is now my task to sentence 4 him for this offence. 5 Both counsel for the Crown and the accused 6 have proposed a joint submission on sentence 7 requesting that I impose a period of imprisonment 8 of anywhere from 20 months to two years less a 9 day, to be followed by two years of probation. 10 Mr. Kenny has been in custody since the 11 offence and counsel differ on the amount of 12 credit that I should give for his presentence 13 custody. Crown counsel says that I should give 14 no more than one to one credit, whereas counsel 15 for Mr. Kenny says that I should exercise my 16 discretion and grant one and a half to one 17 credit. 18 The facts of the offence are as detailed in 19 Exhibit S1, an Agreed Statement of Facts. 20 Briefly, on the evening of April 21st, 2013, 21 Kirsten Yakeleya and her boyfriend Tyler 22 Etchinelle were at Ms. Yakeleya's residence in 23 Tulita, Northwest Territories. At approximately 24 11:15 p.m., Mr. Kenny knocked at the door and 25 Ms. Yakeleya answered it. Mr. Kenny asked to 26 speak to her brother, to which she responded that 27 he was not home and closed the door. About five Official Court Reporters 1 1 minutes later, Mr. Kenny knocked again and 2 Ms. Yakeleya again answered the door. This time 3 Mr. Kenny said that he wanted to return some DVDs 4 that he had borrowed, and when she opened the 5 door he forced his way into the house. Mr. Kenny 6 produced a small knife and stabbed Ms. Yakeleya 7 two times in the shoulder. Ms. Yakeleya fled, 8 screaming, to a bedroom, where Mr. Etchinelle was 9 located. Mr. Kenny followed her and forced his 10 way into the bedroom. Mr. Kenny threw objects at 11 the victims and yelled at Ms. Yakeleya that she 12 had ruined his life. He lunged at Mr. Etchinelle 13 and stabbed him several times. The victims 14 struggled with Mr. Kenny and were able to get him 15 into the living room. During the struggle, Mr. 16 Kenny stabbed Mr. Etchinelle several more times. 17 Mr. Etchinelle managed to get the knife away from 18 Mr. Kenny and the victims then fled the 19 residence. 20 Mr. Etchinelle was stabbed multiple times: 21 three stab wounds to his abdomen/chest area, four 22 stab wounds to the top and rear of his head, and 23 stab wounds to his left arm and thigh. The most 24 serious injury was a wound to the abdomen, which 25 caused Mr. Etchinelle's intestines to protrude. 26 Ms. Yakeleya received two stab wounds to the 27 left shoulder. Official Court Reporters 2 1 Victim impact statements were filed by the 2 victims as well as Mr. Etchinelle's mother. It 3 is clear that the assault committed by Mr. Kenny 4 has had a significant impact on them. They speak 5 of the bewilderment about why this happened to 6 them, their fear during the assault, and the 7 aftermath and how they are dealing with it. Mr. 8 Etchinelle, who suffered the most serious 9 injuries, wrote of the fear that he had that he 10 would lose his girlfriend, how he tried to defend 11 her, and the worry that he feels about if he had 12 not been there to defend her. He also wrote 13 about how he no longer feels safe in his 14 hometown. 15 Mr. Etchinelle's mother wrote about how she 16 felt when she heard about the attack on her son 17 and his girlfriend and her continuing fear about 18 something happening, that she always has to make 19 sure that the doors are locked, which is 20 something that she had not done in the past. 21 Ms. Yakeleya wrote about her fear since the 22 assault. She says that she is scared all the 23 time, afraid to open doors, and does not want to 24 be alone. She has been unable to work at the job 25 that she loved. She is also afraid of Mr. 26 Kenny's family and crowds. She states: 27 I lost everything, my security, my Official Court Reporters 3 1 health, my freedom. I had a life planned but now, it doesn't mean 2 anything. If I had my way, I would hide from the world. 3 4 She also writes about her fear about when 5 Mr. Kenny will return to Tulita and says that she 6 will leave her hometown if he does. 7 Aside from the physical injuries, it is 8 clear that Mr. Kenny's actions have had a 9 psychological impact on the victims, and that is 10 unfortunate because the physical injuries will 11 likely heal but it may be that the psychological 12 injuries never will. 13 The sentencing principles that are 14 applicable in a crime of serious personal 15 violence as stated in R. v. Sarasin, 2013 NWTSC 16 46, are deterrence, both specific and general. 17 Other sentencing objectives that are applicable 18 are denunciation; where necessary, separation of 19 an offender from society; rehabilitation; 20 reparation for harm done to victims; promotion of 21 a sense of responsibility; and an acknowledgement 22 of harm done to victims. Those are all 23 sentencing principles referred to in the Criminal 24 Code and they are all applicable to some extent 25 in this case. 26 Crown counsel provided two cases which are 27 similar in the sense that they involve stabbings, Official Court Reporters 4 1 but there are also several differences in those 2 cases. The cases are useful in that they help 3 establish the appropriate range of sentence and 4 refer to the sentencing principles which are 5 applicable in cases like this. 6 In R. v. Pascal, 2012 NWTSC 40, the offender 7 had entered a guilty plea to aggravated assault 8 and uttering threats. The offender was 9 aboriginal, 40 years old, and had been consuming 10 alcohol with the victim and others. The offender 11 was highly intoxicated and grabbed a knife and 12 stabbed the victim in the chest. He was upset 13 because he viewed the victim as being responsible 14 for the death of his daughter a few years before. 15 The offender's guilty plea happened after the 16 preliminary inquiry but before trial. He had a 17 criminal record which included prior convictions 18 for violence, but there had been no convictions 19 overall since 2003. The sentence that was 20 imposed by the court was 19 and a half months, 21 and the offender received credit for his remand 22 time of approximately four months. 23 The other case that was provided was that of 24 R. v. Sarasin where the offender plead guilty to 25 aggravated assault. The offender in that case 26 was aboriginal, 25 years old, and was under the 27 influence of alcohol and crack cocaine when he Official Court Reporters 5 1 and a group of people had met the victim, who he 2 did not know, on the street. An argument had 3 ensued between the victim and the offender and it 4 escalated to a physical confrontation. The 5 offender then stabbed the victim in the stomach. 6 In that case the offender had a significant 7 criminal record, with one prior assault 8 conviction. He had just been released from jail 9 the day before and was on probation. The Court 10 noted that the offender had a difficult 11 upbringing and had problems with alcohol and drug 12 abuse, but it also noted the offender's young age 13 and his remorse. Justice Vertes noted at 14 paragraph 19: 15 16 Jurisprudence from this jurisdiction has indicated that there is a wide 17 range of potential sentences for a stabbing where someone is wounded. 18 Some of the cases referred to me have indicated a range from 30 19 months to five years. 20 21 The offender in Sarasin was sentenced to 30 22 months and given 15 months credit for time 23 served. He was also placed on probation for two 24 years. 25 I agree that there is a wide range of 26 potential sentences for a stabbing where someone 27 is wounded. Sentences have been imposed of five Official Court Reporters 6 1 years. Others like Pascal are at the lower end 2 of the range. Certainly where a sentence is 3 going to fall within that range is going to 4 depend on the circumstances of the offence and 5 the individual offender. 6 There are a number of factors, both 7 aggravating and mitigating, to consider in 8 determining an appropriate sentence in this case. 9 Mr. Kenny is 19 years old and does not have 10 a criminal record. That is to his credit that he 11 has not previously gotten into trouble. 12 The presentence report and the letters filed 13 on his behalf indicate that this assault was 14 totally out of character for Mr. Kenny. The RCMP 15 reported that they had no prior involvement with 16 him before this incident. His teachers at the 17 Chief Albert Wright School in Tulita, which Mr. 18 Kenny was attending prior to his arrest, 19 expressed their shock and surprise that Mr. Kenny 20 committed this offence. 21 Mr. Kenny has entered a guilty plea and it 22 should be considered an early guilty plea. He 23 was arrested on April 21st, 2013, and sent for a 24 psychiatric assessment shortly after. Following 25 the assessment on his return to Territorial 26 Court, he elected trial by Supreme Court judge 27 alone, did not request a preliminary inquiry, and Official Court Reporters 7 1 consented to his continued detention. Once in 2 Supreme Court, arrangements were made for Mr. 3 Kenny to enter his plea and be sentenced on this 4 matter, so he should receive full credit for his 5 guilty plea. 6 Mr. Kenny has demonstrated his remorse as 7 well for this offence and that is also to his 8 credit. In discussing this offence with the 9 writer of the presentence report, on several 10 occasions he indicated his regret for what 11 occurred. As well, in court today he also 12 indicated his regret for what occurred. 13 In terms of the circumstances of the 14 offence, an aggravated assault is a serious 15 offence, one punishable by up to 14 years' 16 imprisonment. When it comes to stabbings, the 17 difference between a minor injury and a very 18 serious injury, and that includes stabbings that 19 have resulted in death, is often a matter of 20 centimeters, sometimes even less than that, and 21 almost always is simply a matter of luck. So Mr. 22 Kenny is lucky, very lucky, considering the 23 number of times that he stabbed the victims, that 24 there were not more serious injuries and that he 25 is not facing more serious charges today. 26 The assault itself was an unprovoked attack 27 with a knife on two victims. Mr. Kenny went to Official Court Reporters 8 1 the Yakeleya house with the aim he said of 2 returning DVDs and then forced his way into the 3 residence and stabbed Ms. Yakeleya twice. When 4 she fled, he pursued her and proceeded to stab 5 Mr. Etchinelle several times. The assault itself 6 only ended when the victims struggled with Mr. 7 Kenny and got the knife away from him and then 8 were able to flee the residence. And as I have 9 stated, the victims have suffered both physical 10 and psychological injuries as a result of Mr. 11 Kenny's actions. 12 An explanation for why this offence occurred 13 is difficult to determine. Unlike in Pascal and 14 Sarasin, Mr. Kenny was not under the influence of 15 drugs or alcohol - indeed I have heard that he 16 rarely consumed drugs or alcohol - and hung out 17 generally with a crowd that did not pursue these 18 types of activities. 19 Mr. Kenny, in the presentence report and in 20 the psychiatric assessment report, does not 21 really provide an explanation for what occurred. 22 Part of this is attributable to his lack of a 23 concrete memory for what occurred. It seems that 24 stress and anger may have played a part in 25 causing Mr. Kenny to flip out, so this causes me 26 some concern. While motive is often not relevant 27 in a criminal case, there is nonetheless often an Official Court Reporters 9 1 explanation or partial explanation, whether it is 2 intoxication, an argument that got out of hand, 3 or another explanation, for why an offence 4 occurred. That a serious offence like this - an 5 attack with a knife on two unsuspecting victims - 6 has occurred by someone for whom this type of 7 behaviour is clearly out of character and there 8 is no explanation causes me concern with respect 9 to the safety of the victims and other members of 10 the community. 11 There are indications in both the 12 presentence report and the psychiatric assessment 13 report that Mr. Kenny has heard auditory 14 hallucinations in the past. He has also reported 15 experiencing blackouts which are not related to 16 alcohol or drug consumption. While Mr. Kenny 17 apparently as a result of the psychiatric 18 assessment process is now taking an antipsychotic 19 drug, there is no indication that his mental 20 state contributed to this offence occurring. So 21 while Mr. Kenny's mental condition is not one 22 where he is not criminally responsible, his 23 mental health is still of concern and it is a 24 factor in this offence. 25 Public safety and the safety of the victims 26 has to be taken into account in sentencing Mr. 27 Kenny and ensuring that he can be rehabilitated Official Court Reporters 10 1 and so that this type of offence does not occur 2 again. 3 Mr. Kenny is an aboriginal person and 4 section 718.2(e) of the Criminal Code must be 5 considered "where all available sanctions other 6 than imprisonment that are reasonable in the 7 circumstances should be considered for all 8 offenders particularly taking into account the 9 circumstances of aboriginal offenders." The 10 Supreme Court of Canada has given direction to 11 courts in their interpretation of this section in 12 the cases of Gladue and Ipeelee. I have 13 considered the principles set out in those cases 14 and the requirement to consider the unique, 15 systemic or background factors which may have 16 played a part in bringing Mr. Kenny before the 17 courts and the types of sentencing procedures and 18 sanctions which may be appropriate in the 19 circumstances because of his aboriginal 20 background. 21 In this case there is a presentence report 22 that I have the benefit of and counsel's 23 submissions which delve into Mr. Kenny's 24 background as an aboriginal person and some of 25 these unique systemic or background factors which 26 may have affected Mr. Kenny. 27 The information I have is that Mr. Kenny's Official Court Reporters 11 1 parents attended residential school and were 2 negatively affected by it. They abused alcohol 3 while Mr. Kenny was a child and that appears to 4 have had a negative impact on Mr. Kenny. To his 5 credit, he has decided that he does not want to 6 follow in his parents' footsteps and does not 7 want to abuse alcohol. 8 Otherwise, it appears that Mr. Kenny's 9 family is a close and supportive one. While he 10 does not regularly partake of traditional 11 activities and does not live a traditional 12 lifestyle, it appears that he also participates 13 in cultural and community activities, some of 14 which are aboriginal based in the community of 15 Tulita. So I have taken into account those 16 factors in determining sentence. 17 With respect to pre-trial custody, the 18 standard according to the Criminal Code is that 19 credit is imposed on a one to one basis. Section 20 719(3.1) states that if the circumstances justify 21 it, I can grant up to one and a half to one 22 credit for remand time. 23 Mr. Kenny has been in custody since his 24 arrest on April 21st, 2013. The warrant of 25 committal indicates that he consented to his 26 detention, reserving his right to a show cause. 27 A review of the file indicates that Mr. Kenny has Official Court Reporters 12 1 not sought his release. 2 The issue of what circumstances justify an 3 increase of up to one and a half days credit for 4 each day in custody has been previously 5 considered by this Court. In the case of R. v. 6 Green, 2013 NWTSC 20, at paragraph 77, the Court 7 stated. 8 9 ... the proper interpretation of this provision is that the 10 circumstances that can justify enhanced credit do not have to be 11 exceptional or occur only in rare situations. They do, however, have 12 to be applicable to the specific accused who is before the court. 13 14 It has also been determined that enhanced 15 credit is not automatic and the onus is on the 16 person being sentenced to show on a balance of 17 probabilities that the circumstances justify 18 enhanced credit being given. In this case 19 counsel for Mr. Kenny has filed a letter from 20 John Nahanni, who is the Deputy Warden of 21 Programs and Sentence Administration at the North 22 Slave Correctional Centre. He noted the 23 following: Mr. Kenny's behaviour has met 24 expectations, and there are no bad behaviour 25 reports on his file. Mr. Kenny has been housed 26 in general population, similar to other sentenced 27 and remanded inmates. He's also been in a single Official Court Reporters 13 1 cell. Mr. Kenny has not been employed within the 2 institution and is a general cleaner. 3 In terms of programing, I am advised by 4 counsel for Mr. Kenny that he has not taken any 5 programing. It is not clear to me, based on the 6 record before me, what programs Mr. Kenny would 7 have been able to take, although based on prior 8 experience it seems that there is some programing 9 available and educational upgrading that is also 10 available to remand prisoners. So there is some 11 information about Mr. Kenny's remand time but 12 nothing in particular which speaks to whether he 13 would have taken programs or earned remission had 14 he been a serving prisoner. I expect, given the 15 lack of problems with Mr. Kenny while he was on 16 remand, that he would have earned remission. 17 The issue of remission is a relevant 18 consideration in determining whether remand time 19 should be granted on an enhanced basis. Again, 20 it is not automatic and is subject to discretion 21 based upon the specific circumstances of each 22 case. 23 I also note that of his time in custody, Mr. 24 Kenny would have also had time at the Alberta 25 Hospital undergoing the psychiatric assessment. 26 According to the assessment report, he was 27 admitted to Alberta Hospital on May 24th, 2013, Official Court Reporters 14 1 and the report was dated July 9th, 2013. So Mr. 2 Kenny could have spent up to a month and a half 3 at the Alberta Hospital, although the exact time 4 that he was there is not clear. 5 The assessment at the Alberta Hospital was 6 an in-custody assessment and the report details 7 that he was cooperative and pleasant while 8 dealing with staff, but I do not have any 9 information about the circumstances of Mr. 10 Kenny's custody while undergoing the assessment. 11 Mr. Kenny has spent about 163 days in 12 custody as of yesterday, which is about five 13 months and one and a half weeks. In the 14 circumstances, I am not satisfied that Mr. Kenny 15 should receive enhanced credit. 16 Taking all of the circumstances into account 17 for his time into custody on this charge, I am 18 giving Mr. Kenny credit at the basis of 19 one-to-one which for the purposes of his credit I 20 will credit at five and a half months of remand 21 time. 22 With respect to the ancillary orders that 23 have been requested by the Crown, there will be a 24 firearms prohibition order pursuant to section 25 109 of the Criminal Code. It will begin today 26 and end ten days [sic] after the release from 27 imprisonment of Mr. Kenny. Official Court Reporters 15 1 As well, the aggravated assault is a primary 2 designated offence so there will be a DNA order. 3 And also, given the sentence I am about to 4 impose and given Mr. Kenny's lack of employment 5 history, I am going to waive the victim of crime 6 surcharge as I am satisfied that it would impose 7 undue hardship on Mr. Kenny. 8 Can you stand up please, Mr. Kenny. 9 Taking into account the joint submission 10 that has been presented by counsel, if it were 11 not for your youth and your lack of criminal 12 record and your early guilty plea I would have 13 some difficulty in going along with it. But 14 given those circumstances and the number of 15 circumstances that are in your favour, I am going 16 to go along with the joint submission made by 17 your counsel and the Crown. So for the offence 18 of aggravated assault, I sentence you to a period 19 of imprisonment of 23 months. I am giving you 20 credit of five and a half months for your 21 pre-trial custody, which leaves a sentence of 17 22 and a half months to be served. 23 Once you are released from jail you will be 24 subject to a probation order for a period of two 25 years. It will have the following statutory 26 conditions, which are: You are to keep the peace 27 and be of good behaviour, basically stay out of Official Court Reporters 16 1 trouble; to appear before the court when required 2 to do so by the court; to notify the court or the 3 probation officer in advance of any change of 4 name or address; and promptly notify the court or 5 the probation officer of any change of employment 6 or occupation. 7 In addition to those required conditions I 8 am also imposing some optional conditions. They 9 are optional in the sense that I have the option 10 to impose them, but you are still required to 11 abide by them so they are not optional for you. 12 You are to report to your probation officer 13 within five days of your release and thereafter 14 as directed. 15 You are to take counselling as directed. 16 You are to have no contact with Tyler 17 Etchinelle or Kirsten Yakeleya. 18 You are not to go to the residence or place 19 of employment, wherever that may be, of Tyler 20 Etchinelle or Kirsten Yakeleya. 21 You are to advise your probation officer in 22 person or by telephone if you stop taking the 23 medication that has been prescribed for you and 24 you are to do so within 24 hours if you stop 25 taking that medication. So if you stop taking 26 your medication, within 24 hours you need to let 27 your probation officer know. Official Court Reporters 17 1 Do you understand the conditions, Mr. Kenny? 2 THE ACCUSED: Yes. 3 THE COURT: Thank you, you may sit down. 4 All right, counsel, is there anything else 5 we need to deal with? 6 MR. LECORRE: Your Honour, just to clarify 7 one detail. The section 109 order will expire 8 ten "years" as opposed to ten "days"? 9 THE COURT: I'm sorry, it was supposed to 10 be ten years. It should be ten years, yes. 11 MR. LECORRE: Thank you, Your Honour. 12 Nothing further from the Crown. 13 THE COURT: Thank you. 14 Mr. Petitpas? 15 MR. PETITPAS: No, Your Honour, nothing from 16 the defence. Thank you. 17 THE COURT: Thank you. 18 .............................. 19 20 Certified to be a true and accurate transcript pursuant 21 to Rule 723 and 724 of the Supreme Court Rules of Court. 22 23 ______________________________ 24 Annette Wright, RPR, CSR(A) Court Reporter 25 26 27 Official Court Reporters 18
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