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Abstract: Transcript of the Reasons for Sentence
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R. v. McLeod, 2013 NWTSC 74 S-1-CR-2013-000053 IN THE SUPREME COURT OF THE NORTHWEST TERRITORIES IN THE MATTER OF: HER MAJESTY THE QUEEN - v - CLINTON McLEOD Transcript of the Reasons for Sentence delivered by The Honourable Justice V. A. Schuler, in Yellowknife, in the Northwest Territories, on the 29th day of August, 2013. APPEARANCES: Mr. D. Praught: Counsel on behalf of the Crown Mr. J. Bran: Counsel on behalf of the Accused ------------------------------------- Charges under s. 266 C.C. x 2 1 THE COURT: Clinton McLeod entered pleas 2 of guilty to two counts in an Indictment, each 3 being a charge of assaulting his common-law wife 4 contrary to section 266 of the Criminal Code. 5 The Crown proceeded by indictment in this 6 case. 7 The facts are set out in the Agreed 8 Statement of Facts, so I will summarize them 9 briefly. 10 Mr. McLeod and the victim have been in a 11 common-law relationship for approximately 13 12 years and have three daughters, the eldest is 12 13 and there are nine-year-old twins. 14 On May 4, 2013, in the early morning hours, 15 both Mr. McLeod and the victim were intoxicated 16 and were standing at the top of the outside 17 stairs to their residence, which is about seven 18 steps up from the ground. They argued about 19 whether they would continue drinking. Mr. McLeod 20 pushed the victim, causing her to fall on the 21 stairs, hitting her face on the railing of the 22 stairs on the way down. As a result, she 23 suffered a scrape on her face below her right 24 eye. After pushing her, Mr. McLeod told her that 25 she had fallen. While he went inside, the victim 26 remained on the steps crying for about 30 27 minutes. She then went inside and found Mr. Official Court Reporters 1 1 McLeod to be asleep. 2 The victim did not report this incident to 3 the police at that time. 4 On May 8, 2013, Mr. McLeod became angry 5 because he could not find his cell phone in the 6 family home. He accused the victim and two of 7 his daughters of hiding the phone and he was 8 yelling at them. The victim became scared and 9 went upstairs. He followed her. She asked him 10 to leave the residence and he refused. He shoved 11 the victim backwards and despite the children 12 telling him to stop, he then grabbed her and 13 pushed her down the stairs leading to the 14 basement. She fell backwards down the stairs, of 15 which there were seven, to the landing. As a 16 result, she suffered bruising on her left shin 17 and right foot, as well as a sore and stiff neck. 18 The children who were there began to cry and 19 scream at Mr. McLeod. He told them that the 20 victim fell down the stairs. 21 He left the residence. 22 The victim got the children into her van to 23 take them to her mother's house. As they were 24 about to leave, Mr. McLeod came up and tried to 25 get into the vehicle but could not as the doors 26 were locked. 27 There is no evidence in the Agreed Statement Official Court Reporters 2 1 of Facts that Mr. McLeod was under the influence 2 of alcohol at the time of this second offence. 3 The victim's mother reported the matter to 4 the police, and the May 4th incident was also 5 reported to them by the victim on that day. 6 Mr. McLeod was arrested on May 8 and has 7 been in custody since then on consent. 8 The Court has the benefit of a very thorough 9 presentence report for which the author should be 10 thanked. 11 Mr. McLeod is a 30 year old aboriginal man. 12 He described his upbringing to the author of the 13 report as positive, although he and his family 14 went through a difficult time when his sister 15 passed away in an accident when he was 12 years 16 old. A letter from his parents does, however, 17 indicate that there was family violence in the 18 home when Mr. McLeod was growing up. 19 Mr. McLeod pursues traditional skills - 20 hunting, trapping, and fishing. He has a grade 21 10 education and has worked as a labourer and 22 most recently in road and gravel construction and 23 maintenance. He is reported by his family to be 24 a good worker and a good father to his children 25 when he is not under the influence of alcohol. 26 He reports that he has been drinking since 27 the age of 18. It appears from the presentence Official Court Reporters 3 1 report that Mr. McLeod's parents have spoken to 2 him about how alcohol is destroying him and his 3 children. The information from his family is 4 that both Mr. McLeod and the victim drink 5 excessively and need treatment. His parents 6 express concern about the effect of the drinking 7 and violence on the children, and the presentence 8 report states that they report that they are 9 tired of talking to him about his drinking and it 10 seems he does not understand the negative impact 11 alcohol and violence has on his children. His 12 parents also say that Mr. McLeod uses marihuana 13 regularly although he denied that to the 14 probation officer so I do not take that into 15 account. 16 One of the significant features of this 17 case, perhaps the most significant, is Mr. 18 McLeod's criminal record, in particular his 19 record for assaulting the same victim. He was 20 convicted of assaulting her in 2005, he was 21 convicted twice in 2007, he was convicted again 22 in 2009, and in 2010 he was convicted of two 23 charges of assaulting her, making six prior 24 assaults on her. For the 2010 assaults he was 25 given six months on each charge consecutive, for 26 a total of one year. He also has four 27 convictions for failing to comply with probation Official Court Reporters 4 1 orders and recognizances, two of which are for 2 breaching conditions that he not contact the 3 victim. 4 It is clear, therefore, that the 5 relationship between Mr. McLeod and the victim is 6 a lengthy one and that she has suffered 7 considerable violence at his hands, continuing 8 violence over a period of 12 years, almost the 9 entire relationship. It is also clear that again 10 and again she has forgiven him and tried to 11 continue on. I refer to one of the paragraphs in 12 her victim impact statement that has already been 13 read out in court where she says that after the 14 latest assaults, 15 With sadness, I felt let down, 16 betrayed and hated. My perception of my life changed. I wanted both 17 our families to believe that we'll make it as a happy family this time. 18 I wanted them to believe he loved me so much that he would never hurt me 19 again, but he did again. This time with more violence and without 20 remorse. 21 22 She also says in the victim impact statement 23 that she is concerned for the children and how 24 they will remember their childhood with all the 25 violence, and she feels sorry for Mr. McLeod 26 because of what he is doing to his own life by 27 his actions. Official Court Reporters 5 1 When interviewed by the probation officer, 2 the victim advised that she has decided that she 3 is not going back to the relationship with Mr. 4 McLeod, so reconciliation is not a consideration 5 here as it is in some cases. 6 The impact of Mr. McLeod's actions on the 7 children is clearly a concern. Seeing violence 8 perpetrated by their father on their mother may 9 lead them to accept that that is a normal spousal 10 relationship and may lead them to accept that if 11 their boyfriend or their husband abuses and 12 batters them, that is just the way life is no 13 matter how many times they may be told by others 14 that it is not normal and that it is not the way 15 life is for everyone. 16 In my view, the possibility and perhaps, 17 sadly, the likelihood that the eldest daughter 18 may fall into this cycle is illustrated by the 19 facts of this case. The eldest daughter and her 20 sister were crying and screaming at the accused 21 when he pushed their mother down the stairs on 22 May 8. It must have been a very upsetting and 23 frightening experience for them. Yet, the 24 presentence report also talks about Mr. McLeod's 25 eldest daughter "crying for days" when she found 26 out that her father was in jail and being "lost 27 without him". It is hard to imagine how his Official Court Reporters 6 1 daughter will reconcile such conflicting views of 2 her father, in other words, obviously loving him 3 but also fearing him and being horrified by his 4 behaviour, how she will reconcile those views 5 without being negatively affected herself. 6 The only mitigating factor in my view is the 7 fact that Mr. McLeod pleaded guilty and the 8 victim has not had to testify at a trial or a 9 preliminary inquiry. The guilty pleas are early, 10 although there is no indication that they came at 11 the earliest possible opportunity which would 12 have been in Territorial Court, but still the 13 guilty pleas are a significant mitigating factor. 14 There are also many aggravating factors. I 15 have already described with respect to the facts 16 that on May 4, Mr. McLeod pushed the victim on 17 the stairs. At that time they were both 18 intoxicated. Then four days later after the 19 first assault and despite knowing what he had 20 done when he was intoxicated and now in a 21 situation where he was not intoxicated, he did it 22 again, he pushed her down the inside stairs. So 23 that repetition of behaviour is aggravating. 24 The fact that two of the children were 25 present during the second assault and were 26 screaming at him to stop, yet he did not, is a 27 highly aggravating factor. Official Court Reporters 7 1 On both occasions Mr. McLeod initially 2 denied responsibility, told the victim that she 3 fell. On the second occasion he told the 4 children who were there that she fell. In other 5 words, he put the blame on her. He did nothing 6 to help her. In my view, that is an aggravating 7 factor. 8 The fact that he has repeatedly assaulted 9 the victim over 12 long years is also a highly 10 aggravating factor. I am not sentencing Mr. 11 McLeod today for the assaults he has already been 12 sentenced for, but his record of assaults on the 13 victim, the fact that he has been before the 14 court many times over the past 12 years for the 15 same type of behaviour and no doubt has 16 repeatedly been told why it is wrong and that it 17 will damage his children yet he continues in this 18 behaviour when drinking and when sober, that 19 indicates to me that Mr. McLeod, for all of the 20 things he has said to the Court and to the 21 probation officer, just does not get it or is not 22 willing to get it. 23 The Criminal Code says that when an offender 24 abuses his spouse or common-law partner that is 25 an aggravating factor. The reason is simple - 26 the basis of that relationship is trust between 27 the parties and abusing/assaulting one's spouse Official Court Reporters 8 1 is a breach of that trust. Mr. McLeod is 2 supposed to help and support his family, and that 3 includes the victim. His actions over the past 4 12 years and his actions on May 4 and 8 violated 5 the trust between them and it also has the effect 6 of violating the trust of his children. 7 Although he apologized to the Court and his 8 family when he spoke here on Monday, and although 9 he has pleaded guilty, Mr. McLeod does seem to 10 lack any insight into what he is doing. He seems 11 to lack any insight into the effect his actions 12 are having. His parents say they have spoken to 13 him repeatedly about what his drinking is doing 14 to his children. The presentence report says 15 that they talked of it "destroying" his children. 16 The probation officer says that although Mr. 17 McLeod reports that he is ready and willing to 18 make changes in his life by attending a 19 residential treatment program, he does not appear 20 to understand the impact alcohol abuse has on his 21 family life and views it as somewhat normal. 22 For someone who has repeatedly been in court 23 on domestic violence charges, someone whose 24 family has repeatedly talked to him about this 25 issue, the lack of understanding and the lack of 26 dedication to change has to be of great concern 27 to the Court. I also note that the letter that Official Court Reporters 9 1 Mr. McLeod prepared and that was marked as 2 Exhibit 6 on the sentencing, expresses more 3 concern for himself and what he has suffered and 4 what he has lost than it does for anyone else. 5 He says in the letter that he is very sorry to 6 have committed a crime and to have offended the 7 court. He also says that he is sorry if he has 8 inadvertently and unwillingly hurt and 9 disappointed anyone in the process. In light of 10 the facts of the case that is before me and in 11 light of his record, his conduct cannot possibly 12 be described as "inadvertent" or "unwilling", so 13 this to me simply highlights Mr. McLeod's 14 inability or perhaps unwillingness to understand 15 that he is the one who committed the crimes. He 16 is the one who has to stop himself from 17 committing further crimes. No one else is to 18 blame. No one else made him push the victim down 19 the stairs. He seems to blame the police for not 20 having been given the chance to take treatment 21 during a past incarceration. Whether the police 22 played a role or not, he has had 11 years since 23 the first assault in which to take treatment. 24 His family has tried to get him to take 25 treatment. I have to say that I find Mr. 26 McLeod's attitude very troubling. 27 I do not accept the submission that the Official Court Reporters 10 1 offences before me are minor. True, they did not 2 result in significant physical injury to the 3 victim, however pushing someone at the top of a 4 flight of stairs in my view is an objectively 5 dangerous act no matter whether the victim is the 6 offender's spouse or a stranger. Just as hitting 7 someone in the head may result in severe injury 8 even if that injury was not specifically 9 intended, pushing someone in circumstances where 10 they may fall down a flight of stairs may result 11 in severe injury; for example, a head injury 12 resulting in death, broken bones. It is only 13 luck that the victim was not severely injured or 14 died and that Mr. McLeod is not here facing a 15 much more serious charge. In any event, in this 16 case because of the history between the parties, 17 the psychological impact on the victim is 18 serious. 19 I take into account, as I must, that Mr. 20 McLeod is an aboriginal person. He has not, it 21 appears, suffered some of the negative effects 22 that many other aboriginal people who come before 23 the court have suffered. In his case although 24 his parents went to residential school, they 25 report in the presentence report that they found 26 it to be a positive experience. On the other 27 hand, Mr. McLeod has clearly abused alcohol, Official Court Reporters 11 1 which is a factor for many aboriginal people. 2 But there is no submission before me that because 3 of his aboriginal status Mr. McLeod should not be 4 sentenced to jail, nor indeed would such a 5 submission be reasonable in the circumstances of 6 this case. Although I do not ignore Mr. McLeod's 7 aboriginal status, the courts have made it clear 8 that deterrence of others who assault their 9 spouses and denunciation signifying society's 10 rejection of spousal violence are the paramount 11 sentencing considerations along with specific 12 deterrence, which is in itself a weighty 13 consideration; in other words, past sentences 14 imposed for this type of behaviour have not 15 persuaded Mr. McLeod to change his ways so this 16 sentence has to try to accomplish that. 17 I am not under any illusion that courts or 18 sentences alone can make people change their 19 ways. There has to be a willingness to change 20 and an understanding of the problem. 21 I also keep in mind that the victim is 22 entitled to be protected from Mr. McLeod's 23 violence and his daughters are entitled to be 24 protected from the effects of his violence. 25 One of the main principles of sentencing is 26 that a sentencing must be proportionate to the 27 gravity of the offence and the moral Official Court Reporters 12 1 blameworthiness of the offender. Here, the 2 offences are serious even though they did not 3 result in serious physical injury. 4 The moral blameworthiness is also high. I 5 agree with the observations of Justice Vertes in 6 the McKay case, 2003 NWTSC 63, that where, as 7 here, an offender has been previously convicted 8 of the same type of offence, has been punished 9 for it and continues to repeat that same offence 10 notwithstanding the previous punishments, then 11 the moral blameworthiness is quite high. Mr. 12 McLeod has now accumulated eight convictions for 13 assaulting the victim so the moral 14 blameworthiness is significant. 15 As to the remand time, counsel agree that it 16 is 111 days. Defence counsel asks that it be 17 credited at 1.5 rather than on a one-to-one 18 basis. Under sections 719(3) and (3.1) of the 19 Criminal Code, I can only give more than 20 one-to-one credit and up to 1.5 credit if the 21 circumstances justify it and so long as Mr. 22 McLeod was not detained because of his record. 23 The latter was not the case since he was in 24 custody by consent. So the question is do the 25 circumstances justify the enhanced credit. The 26 reasons put forward are, first, that Mr. McLeod 27 has been a well-behaved prisoner and so would Official Court Reporters 13 1 have earned remission had he been a serving 2 prisoner according to the information from his 3 case manager at the jail; second, that he asked 4 for but was not able to take core programming for 5 alcohol abuse and anger and the reason he was not 6 able to is his remand status. I note that he 7 was, however, able to attend AA meetings 8 approximately weekly in June, July and August. 9 Crown counsel takes no position on the 1.5 10 credit sought. Since 1.5 is the maximum, I think 11 it is reasonable that it be reserved for cases 12 where the remand time has been spent in 13 conditions of hardship or where there are other 14 factors that justify it, which I do not find to 15 be the case here. I will, however, credit the 16 remand at 1.3, for a total credit of 144 days. 17 Crown counsel seeks a sentence on each count 18 of nine to twelve months to be served 19 consecutively, in other words a global sentence 20 of 18 to 24 months along with probation for two 21 years. Defence seeks a global sentence of six to 22 eight months with not more than one year 23 probation. 24 I have reviewed all of the cases submitted 25 by both counsel and, as usual, no one case is 26 exactly the same as this case. The main 27 distinguishing factor, in my view, in this case Official Court Reporters 14 1 is the number of assaults over such a lengthy 2 period of time. 3 The Crown requests a DNA order which defence 4 opposes because it is not mandatory. There is no 5 question, however, that DNA is a very useful 6 investigative tool for the police. In light of 7 Mr. McLeod's history, it is quite possible, at 8 the very least, that some day he will commit more 9 assaults, perhaps even more serious ones, if not 10 on the victim in this case then on some other 11 woman with whom he forms an intimate 12 relationship. The taking of DNA is minimally 13 intrusive. In my view, a DNA order is in the 14 best interests of the administration of justice 15 and I make that order. 16 As to the Crown's request for a firearms 17 prohibition order, which is not mandatory in this 18 case since hunting and trapping are a significant 19 aspect of Mr. McLeod's life and since there is no 20 indication that he has used a firearm or any 21 other weapon in any of the assaults on the 22 victim, I am not going to make the order under 23 section 109 but I will instead impose some 24 conditions on his possession of firearms under 25 the probation order that I will make and I will 26 impose those conditions for the safety of the 27 victim. Official Court Reporters 15 1 Stand up please, Mr. McLeod. 2 Mr. McLeod, you are only 30 years old and 3 already you have a terrible record for spousal 4 assault. You had better do something about your 5 drinking and your understanding of your problems 6 because otherwise I have no doubt that you will 7 be spending a large part of your middle age in 8 jail and maybe even in the penitentiary. 9 You are said to be a good father, but a good 10 father does not assault his wife and he does not 11 do things that he knows are going to damage his 12 children. If you continue to act that way, you 13 have already heard - you have heard me say, I am 14 sure you have heard many people say - you will be 15 damaging your children and maybe that will result 16 in damage to your grand-children, and on and on 17 it will go. I do not want to be sitting here one 18 day sentencing someone who happens to be the 19 husband or the boyfriend of one of your daughters 20 and be thinking to myself "she probably cannot 21 get out of the situation because that is what she 22 saw at home and she thinks it is normal." I am 23 sure that you do not want that to happen either, 24 but you have to decide what you are going to do 25 about it. 26 Taking everything into account including the 27 guilty pleas, on Count 1, which is the assault on Official Court Reporters 16 1 May the 4th, I am sentencing you to eight months 2 in jail. On Count 2, the assault on May 8th, I 3 sentence you to ten months in jail consecutive. 4 That is a total of 18 months. 5 The remand time of 144 days will be credited 6 against the total sentence. 7 On both counts there will be a probation 8 order for a period of 18 months. The statutory 9 conditions will be included, and you will also 10 have to obey the following conditions: You will 11 report to a probation officer within two days of 12 release from jail and thereafter as required by 13 the probation officer. 14 Your lawyer indicated that you would be 15 willing to take alcohol abuse counselling. I am 16 asking you to confirm that you are willing to 17 take treatment and counselling for alcohol abuse. 18 THE ACCUSED: Yeah. 19 THE COURT: I also intend to impose a 20 condition that you take counselling and treatment 21 for violence issues. Do you agree with that? 22 THE ACCUSED: Yeah. 23 THE COURT: All right. So there will also 24 be a condition that you are to take such 25 counselling and treatment to address your 26 violence issues and alcohol abuse as recommended 27 by your probation officer. Official Court Reporters 17 1 During the period of probation you will not 2 have in your possession any firearms while in the 3 Hamlet of Fort Liard. When you are outside the 4 Hamlet of Fort Liard, you will not have in your 5 possession any firearms except when you are out 6 on the land. So if you go to Fort Simpson, you 7 do not have any firearms in your possession. 8 THE ACCUSED: Okay. 9 THE COURT: Do you understand? 10 THE ACCUSED: Yeah. 11 THE COURT: In light of the length of the 12 jail sentence and because I understand that the 13 new legislation that will in fact prevent courts 14 from waiving the victim surcharge is not yet in 15 force, I will in this case waive the victim 16 surcharge. 17 Have a seat, Mr. McLeod. 18 Is there anything else, counsel, that I have 19 overlooked? 20 MR. PRAUGHT: Just to clarify the firearms 21 prohibition condition, Your Honour. I believe 22 right at the end you said, just to clarify, is it 23 no possession while in Fort Liard? While outside 24 of Fort Liard, while only on the land? 25 THE COURT: That's right, no possession in 26 Fort Liard; and when he's outside of Fort Liard 27 he can only have the firearms if he's out on the Official Court Reporters 18 1 land. I suppose that perhaps it would be less 2 complicated to simply say: Not be in possession 3 of any firearms except when you are out on the 4 land, and that would encapsulate the whole thing. 5 MR. PRAUGHT: I think that the prohibition 6 specifically addressing the community of Fort 7 Liard is helpful, so I think it's okay. I think 8 Your Honour said "Fort Simpson" instead of "Fort 9 Liard" at the end there. 10 THE COURT: Oh, I'm sorry. I was just 11 trying to illustrate my intention being that if 12 he were to go to Fort Simpson or if he were to go 13 to Hay River, he is not to have any firearms in 14 those communities because he would not be out on 15 the land. 16 MR. PRAUGHT: So "the land" would be outside 17 of the community. 18 THE COURT: Yes. And when I say the 19 "Hamlet of Fort Liard", I mean whatever the 20 municipal boundaries are of the Hamlet of Fort 21 Liard. 22 MR. PRAUGHT: Thank you. 23 THE COURT: Is that clear? 24 MR. BRAN: Your Honour, I spoke very 25 briefly here with Mr. McLeod about that issue. 26 It sounds like whenever his family does go 27 outside of Fort Liard they are usually in a camp. Official Court Reporters 19 1 I asked him if there were times that he would 2 perhaps at times travel along the river and maybe 3 make his way through places such as Fort Simpson 4 or Wrigley, and he's explained that no, it's 5 usually just at camp and they're not going to 6 other communities or travelling through any other 7 communities, for instance Nahanni Butte or 8 anything. So I think that condition is clear and 9 he understands that condition. 10 THE COURT: All right. 11 If there is not anything else, we will close 12 court. 13 .............................. 14 15 Certified to be a true and accurate transcript pursuant 16 to Rule 723 and 724 of the Supreme Court Rules of Court. 17 18 ______________________________ 19 Annette Wright, RPR, CSR(A) Court Reporter 20 21 22 23 24 25 26 27 Official Court Reporters 20
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