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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
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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
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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.
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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
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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,
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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
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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
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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
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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
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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
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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
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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
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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
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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
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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,
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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.
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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
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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.
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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
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