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Abstract: Transcript of the Reasons for Sentence

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             R. v. Weninger, 2013 NWTSC 50           S-1-CR-2012-000117



             IN THE SUPREME COURT OF THE NORTHWEST TERRITORIES



             IN THE MATTER OF:



                               HER MAJESTY THE QUEEN





                                       - V -





                                  STEPHEN WENINGER

             _________________________________________________________

             Transcript of the Reasons for Sentence by The Honourable

             Justice L. A. Charbonneau, sitting in Fort Smith, in the

             Northwest Territories, on the 4th day of July, A.D., 2013.

             _________________________________________________________



             APPEARANCES:



             Mr. A. Godfrey:               Counsel for the Crown

             Mr. S. Petitpas:              Counsel for the Defence



                    ----------------------------------------

                 Charge under s. 267(b) Criminal Code of Canada

                  INITIALS USED FOR THE COMPLAINANT'S NAME TO
                    PROTECT THE IDENTITY OF THE COMPLAINANT



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         1      THE COURT:             Stephen Weninger pleaded

         2          guilty yesterday to a charge of having, between

         3          the 1st of November, 2011, and the 18th of May,

         4          2012, assaulted his common-law spouse, S. A.,

         5          and having caused bodily harm to her.  I must

         6          now decide what his sentence should be for that

         7          offence.

         8               The Crown takes the position that a jail

         9          term between 18 and 20 months is appropriate

        10          for this offence.  Even giving credit to

        11          Mr. Weninger for the time he has already spent

        12          on remand, this would mean imposing a further

        13          jail term on him today in the range of 6 to 8

        14          months.  Mr. Weninger's counsel has argued that

        15          the time that Mr. Weninger has already spent in

        16          custody is sufficient to address the goals of

        17          sentencing.

        18               Crown and defence agree that whatever

        19          else I do I should include a term of probation

        20          as part of his sentence, to include a no-contact

        21          order to provide a sense of safety to S. A., and

        22          also to include conditions designed to assist

        23          Mr. Weninger in his own efforts towards his

        24          rehabilitation.

        25               Mr. Weninger and S. A. became involved

        26          in a relationship in November of 2011.  They

        27          started living together here in Fort Smith.






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         1          According to the facts that I heard yesterday

         2          that relationship soon became volatile.

         3          Mr. Weninger and S. A. got into arguments

         4          and used some level of force and violence

         5          against each other as conflicts between them

         6          escalated.  Mr. Weninger admits that there

         7          were a number of times between January and

         8          May, 2012, where he struck her on her arms

         9          and shoulders to the point of causing bruising

        10          to her.  He also admits that he slapped her

        11          and pulled her hair.  The facts presented to

        12          the Court do not include any details as to

        13          what brought these incidents on or what the

        14          difficulties between these two individuals were

        15          about.  What I did hear was that these things

        16          happened when the two of them had been drinking.

        17               On May 16th they got into yet another

        18          argument and a confrontation.  This one

        19          escalated to the point where Mr. Weninger bit

        20          S. A.'s left earlobe.  This caused an injury

        21          to her that required ten stitches to close.

        22          To this date, over a year later, there remains

        23          a scar and discolouration on her injured earlobe

        24          and she still experiences numbness to that area

        25          of her body.

        26               The facts do not include the exact time

        27          when these offences came to the attention of






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         1          the RCMP, but sometime after the last assault

         2          Mr. Weninger re-located to the community of

         3          Fort Liard where his former spouse, D. B., and

         4          his children live.  After the offences against

         5          S. A. were reported and charges were laid a

         6          warrant was issued for his arrest, presumably

         7          because the RCMP in Fort Smith could not locate

         8          him.  That warrant was executed on June 30th,

         9          2012.  Mr. Weninger was taken into custody,

        10          and following a show cause hearing held in

        11          Yellowknife he was ordered detained on July

        12          10th and has been in custody since.  As of

        13          today's date, July 4th, 2013, he has spent

        14          a year and four days in custody.

        15               The Warrant of Committal issued following

        16          the show cause hearing includes an endorsement

        17          pursuant to paragraph (9.1) of Section 515 of

        18          the Criminal Code, stating that he was detained

        19          primarily because of previous convictions.  The

        20          legal effect of this is that for the time he has

        21          spent on remand I can only give him credit for

        22          one day for each day spent on remand.  I do not

        23          have the discretion to give him credit on a ratio

        24          any greater than that for the time he has spent

        25          on remand.

        26               S. A. did not provide a victim impact

        27          statement, although Crown Counsel confirmed






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         1          that he met with her earlier this week and that

         2          she was advised of her right to do so.  She also

         3          did not wish to attend this sentencing hearing.

         4          I am told that after meeting with Crown Counsel

         5          and the Crown witness coordinator she expressed

         6          that she still feels afraid of Mr. Weninger.

         7          She does not want any contact with him.  I heard

         8          this morning that she is also not even interested

         9          in contact with him for the purposes of him

        10          expressing a written apology to her, and I think

        11          that speaks volumes about the impact that these

        12          offences had on her even though I do not have

        13          the benefit of a victim impact statement.

        14               This is not a case where there is any

        15          suggestion that either party would like to

        16          continue or restore the spousal relationship

        17          that existed at the time of these events.

        18          Crown Counsel also advised me yesterday in

        19          submissions that S. A. has also expressed

        20          that she does not think that Mr. Weninger

        21          should receive any additional jail term for

        22          this offence.  This also tells me something

        23          about her character.  Evidently she is not

        24          interested in revenge.

        25               Mr. Weninger's criminal record has been

        26          filed as an exhibit, and in looking at that

        27          record it is not surprising that the Justice






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         1          of the Peace who presided over the show cause

         2          hearing ordered his detention primarily because

         3          of his prior convictions.  I say that because

         4          there are numerous entries on his criminal

         5          record for crimes of violence and a large

         6          number of entries for breaches of court orders.

         7          Both types of convictions would have raised

         8          significant concerns about releasing him on

         9          bail.

        10               The criminal record begins with entries

        11          in October of 1997 for dangerous operation of

        12          a motor vehicle.  Then there is a fairly steady

        13          stream of convictions every year or so until

        14          the last conviction before this one, which was

        15          in December of 2012 for possession of marijuana.

        16          In between those two there are a number of

        17          different types of convictions on this record;

        18          driving offences, offences for failing to comply

        19          with court orders, property offences, many many

        20          entries for assault, a few convictions for crimes

        21          committed against police officers (one assault

        22          police officer and one resist arrest conviction),

        23          as well as one conviction for uttering threats.

        24               What makes the record of grave concern is

        25          the number of entries on it that are convictions

        26          for crimes of violence against his spouse, and

        27          these include the following:  December 19th,






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         1          2002, a conviction for assault for which he

         2          received four months in jail followed by

         3          probation for one year.  June 26th, 2003, a

         4          conviction for assault for which he received

         5          six months in jail and probation for one year.

         6          August 6th, 2004, two convictions for assault

         7          for which he received concurrent terms of six

         8          and four months in jail.  On the same date he

         9          was also convicted of breach of probation which,

        10          based on the dates, would had to have been

        11          related to the probation order he was on for

        12          the earlier assault in 2003.  October 15th, 2007,

        13          one conviction for assault for which he received

        14          a jail term of 60 days.  August 5th, 2008, two

        15          convictions for assault for which he received

        16          a total of seven months in jail followed by

        17          probation for two years.  February 8th, 2010,

        18          a conviction for assault for which he received

        19          a jail term of six months.  Again, he was also

        20          on that day convicted for breaches of probation

        21          and received consecutive jail terms for that.

        22          Again, this would had to have been the probation

        23          order from the earlier conviction that was part

        24          of his sentence for another conviction for an

        25          assault on his spouse.

        26               For most of these convictions the Crown

        27          prosecutor was able to determine from police






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         1          records that the victim was Mr. Weninger's

         2          previous spouse, D. B.  She was also the victim

         3          in the assault convictions from 2003 and 2004.

         4          The records that the Crown was able to consult

         5          did not specifically identify those assaults as

         6          spousal in nature, but in all the circumstances

         7          I consider it an inescapable conclusion that

         8          these assaults occurred when Mr. Weninger and

         9          D. B. were in a spousal relationship.

        10               I heard at the sentencing hearing that

        11          he was in a relationship with her for several

        12          years and that they have two daughters together;

        13          the eldest is now 11 years old.  That means she

        14          was born sometime in the latter half of 2001 or

        15          the first half of 2002.  Given this I have no

        16          difficulty in concluding that the assaults for

        17          which Mr. Weninger was convicted for assaulting

        18          this same person, D. B., in 2003 and 2004 were

        19          spousal in nature.

        20               All that means is that before he began his

        21          relationship with S. A. Mr. Weninger had been

        22          convicted eight times for assault committed

        23          against his spouse.  For each of those assaults

        24          he received jail terms, although none of them

        25          were particularly lengthy.  This is his ninth

        26          conviction for such an offence, and it is a

        27          conviction for an offence that is more serious






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         1          than any of the previous ones because this time

         2          he committed the crime of assault causing bodily

         3          harm as opposed to simple assault, which is what

         4          he was convicted of the eight other times.

         5               These past related convictions are obviously

         6          of significant concern to the Court.  It matters

         7          very little that the spouse that he assaulted

         8          this time was not the same person as the one

         9          he had assaulted so many times in the past.

        10          Irrespective of the identity of the person

        11          assaulted what this demonstrates is a pattern

        12          by Mr. Weninger of abusing the women he shares

        13          his life with.  Deterring him from engaging in

        14          this conduct again is a significant sentencing

        15          objective at this point.

        16               Defence counsel is asking the Court to take

        17          into account the fact that violence went in both

        18          directions in Mr. Weninger's relationship with

        19          S. A., and the Crown does not dispute that this

        20          was a volatile relationship where both spouses

        21          used force against the other, particularly when

        22          they were intoxicated.

        23               On a charge of assault causing bodily

        24          harm consent is not a defence.  That is

        25          because, for policy reasons, our law does

        26          not accept the notion of a person being able

        27          to consent to another inflicting bodily harm






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         1          on them.  I do accept that the circumstances

         2          of the assault may offer some mitigation on

         3          sentencing when it is shown that the offender

         4          used excessive force and inflicted bodily harm

         5          in circumstances where the altercation began as

         6          a consensual fight, because that type of scenario

         7          is admittedly different than the scenario when

         8          the use of force is entirely one-sided.  At the

         9          same time, this factor can only go so far in

        10          mitigation in this case, and I say that for

        11          two reasons:

        12               The first is that this case does not involve

        13          a single occurrence of Mr. Weninger "going too

        14          far" in responding to force used against him in

        15          the context of a volatile relationship.  There

        16          were a number of incidents here, a number of

        17          times where he "went too far."  He did not just

        18          cause bodily harm to her by biting her ear on

        19          May 16th, it is also admitted that the bruises

        20          visible in the photographs taken in May of 2012

        21          were the result of some of the earlier incidents.

        22          So he would have seen the consequences of his use

        23          of force on her.  There are no allegations before

        24          me that he was ever injured by her.  What is

        25          clear is that she was injured by him more than

        26          once, and the type of force he used against her

        27          on May 16th, biting her earlobe to the point it






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         1          required stitches, is very serious.  Biting is

         2          quite a vicious type of assault.

         3               The second reason why I am reluctant to

         4          attach significant weight to the fact that there

         5          was force being used both ways here is that to

         6          an extent I think that factor is overshadowed

         7          by the pattern of spousal violence revealed by

         8          Mr. Weninger's criminal record.  In my view

         9          there is clearly a problem here, a problem he

        10          urgently needs to address if he does not want

        11          to find himself before the Courts again and

        12          imprisoned for very long periods of time.

        13               When Mr. Weninger spoke to the Court

        14          yesterday he apologized and he said he was

        15          ashamed about what he did, and I believe that

        16          this is truly how he feels today.  He talked

        17          about making a mistake, but he also described

        18          himself as a not violent person by nature,

        19          saying he has a tendency to retaliate even

        20          though he knows he should not.  I do not

        21          question his sincerity in saying that, but

        22          with all due respect to him I do have some

        23          difficulty with how he characterizes himself

        24          and how he characterizes his actions.  I question

        25          the accuracy of his self-perception in being "not

        26          violent in nature."  I do so when I consider the

        27          sheer number of convictions for assault on his






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         1          record, combined with the fact he also has a

         2          conviction for uttering threats, combined with

         3          the fact he does not only have spousal assault

         4          convictions on his record but also convictions

         5          for other types of assault, including assaults

         6          and behavior resisting peace officers.

         7               Putting all of that on account of

         8          retaliation as opposed to being violent,

         9          simply put, does not sound very realistic to

        10          me.  I think Mr. Weninger does have a problem

        11          with violence and anger, not just a problem

        12          with alcohol and retaliating when he should

        13          not.  I think he is going to have to come

        14          to terms with the fact that he is capable

        15          of violence period, and he needs to get help

        16          to figure out why and figure out how not to

        17          act this way when he is angry or frustrated or

        18          whatever it is that triggers these reactions.

        19               There are a number of aggravating factors

        20          in this offence.  First, the fact that there

        21          were several incidents over the course of a

        22          number of months as opposed to a single incident.

        23          Second, the type of injury inflicted on the last

        24          incident and the lasting consequences that it

        25          had.  That impact continues a year later, and

        26          in my view is not at the most minor end of what

        27          constitutes bodily harm.  The third aggravating






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         1          factor is the criminal record, which I have

         2          already talked about at length.  The fourth is

         3          the fact that this occurred within the context

         4          of a spousal relationship which has, for many

         5          years, been treated by this Court and other

         6          Courts as an aggravating factor and is now

         7          specified as an aggravating factor in the

         8          Criminal Code.

         9               As far as mitigating factors, the main

        10          one and really I think the only one is the

        11          guilty plea.  This guilty plea was not entered

        12          at an early opportunity.  The case did proceed

        13          to a preliminary hearing and S. A. had to testify

        14          at that hearing.  Sometime ago this week was

        15          identified as the week where the trial would

        16          proceed in this Court.  At the end of last week

        17          counsel for Mr. Weninger advised the registry

        18          that there would be a guilty plea.

        19               I recognize that while S. A. was not spared

        20          completely from having to testify in relation to

        21          this charge, because she did have to testify at

        22          the preliminary hearing, the Crown was able to

        23          advise her that she would not have to testify at

        24          this trial and the Crown was able to de-notify

        25          other witnesses.  I am certain she must have

        26          been very relieved not to have to testify at

        27          this trial.






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         1               This Court knows very well from seeing

         2          witnesses testify in criminal cases week in

         3          and week out that it often is a very difficult

         4          process for them.  It would be especially

         5          difficult for someone who remains afraid of the

         6          accused.  Sparing someone from that is always

         7          significant.  It also provides complainants

         8          with certainty of the outcome, which is not

         9          insignificant.

        10               So while Mr. Weninger is not entitled to

        11          as much credit for his guilty plea as he would

        12          have if he had offered it a year ago or at some

        13          earlier time in the process, he did give up his

        14          right to have a trial and have the Crown prove

        15          these allegations beyond a reasonable doubt, and

        16          for that he is entitled to some credit.  I also

        17          consider that he was facing not just a charge of

        18          assault causing bodily harm when this matter was

        19          set for trial, the Crown was going to try him

        20          also on the more serious charge of aggravated

        21          assault, a charge that the Crown is now prepared

        22          not to proceed with.  So the jeopardy he faced

        23          as this trial date was coming up was greater

        24          than ultimately what he has pleaded guilty to.

        25          That is another reason why I am prepared to give

        26          that plea mitigating effect even though it was

        27          entered late in the process.






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         1               The circumstances of the offence, which

         2          is what I have mostly been talking about so far,

         3          are part of what I must consider when determining

         4          what a fit sentence is.  Another important aspect

         5          I have to consider is Mr. Weninger's personal

         6          circumstances.  I have already talked about

         7          his criminal record, which is part of those

         8          circumstances, but obviously there is a lot

         9          more to him and to his life than that criminal

        10          record.

        11               I heard from counsel that Mr. Weninger

        12          was offered up for adoption right from birth.

        13          He was fortunate to be placed in the care and

        14          later formally adopted by a family where he

        15          was able to grow up in a supportive and loving

        16          environment, free from abuse and violence.

        17          His family re-located several times as he was

        18          growing up because of the nature of his father's

        19          employment, and later of his mother's employment,

        20          but there is no suggestion that those frequent

        21          re-locations impacted negatively on him.

        22               It is clear from what his counsel has said

        23          and from what Mr. Weninger himself said that the

        24          conduct that he had displayed in his adult life

        25          is not in line with the values that his parents

        26          taught him or with how they behaved with each

        27          other in the family unit.  I heard that for






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         1          whatever reason Mr. Weninger did experiment

         2          with alcohol when he was very young, 10 years

         3          old, and unfortunately his use of alcohol

         4          escalated when he was 15.  He now acknowledges

         5          that he has an addiction to alcohol, and he has

         6          said to the Court that in the year that he has

         7          spent on remand he has had a lot of time to

         8          think about the role that alcohol has played in

         9          his life.  He says he has come to the conclusion

        10          that he must absolutely stop drinking if he wants

        11          to change his lifestyle and not end up in jail

        12          again.  He appears determined to make that

        13          change.

        14               It is a fact that this is not an easy

        15          road to travel even for people who are very

        16          determined.  Mr. Weninger knows this because

        17          he has been in treatment twice before, in

        18          alcohol treatment, and he I am sure realizes

        19          that he will need to renew his commitment to

        20          live an alcohol-free life regularly if he is to

        21          succeed.  There is no doubt he will be exposed

        22          to temptation to return to alcohol use when

        23          he regains his freedom, and he probably will

        24          need help and support if he wants to maintain

        25          a sober lifestyle.  I heard he has an education,

        26          he has talents and skills and many hobbies and

        27          interests.  So I have no doubt that he is capable






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         1          of doing it, but it will require a life-long

         2          commitment on his part.  It is the Court's

         3          sincere hope that for the sake of his children,

         4          for the sake of others in his life who care for

         5          him, and for his own sake, that he will in fact

         6          maintain that commitment.

         7               Mr. Weninger is of Metis descent, and this

         8          imposes special obligations on me in the analysis

         9          I must undertake to decide what a fit sentence is

        10          for this crime, in accordance with the directions

        11          given by the Supreme Court of Canada in the cases

        12          of R. v. Gladue, [1999] 1 S.C.R. 688, 133 C.C.C.

        13          (3d) 385, 23 C.R. (5th) 97, and R. v. Ipeelee,

        14          2012 SCC 13.  I have considered the principles

        15          set out in those cases and the obligation that

        16          I have to examine systemic and case-specific

        17          factors that have impacted Mr. Weninger as an

        18          aboriginal person.  I have considered to what

        19          extent those factors should impact my ultimate

        20          decision on sentencing today.

        21               As I have already alluded to, his family

        22          situation as he was growing up was such that

        23          it does not appear that he faced some of the

        24          systemic disadvantages that we hear about in

        25          many sentencing hearings involving aboriginal

        26          offenders in this jurisdiction.  He grew up,

        27          by all accounts, in a healthy and supportive






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         1          environment, something he acknowledges.  He said

         2          himself "this is not how I was raised."  He was

         3          not raised in alcohol abuse, he was not raised

         4          in violence, and he was not taught growing up

         5          that it was okay to abuse a spouse, physically

         6          or psychologically.

         7               He has succeeded in his educational

         8          pursuits.  He got his general education

         9          degree in 2006, as well as a diploma from

        10          Aurora College here in Fort Smith to work

        11          in small airports as an observer/communicator.

        12          He has held that type of employment, and he

        13          has also worked as a carpenter and obviously

        14          has good employment prospects for the future.

        15          He has musical talents, hobbies, he can carve,

        16          he can build log cabins, and he assists people

        17          on hunts.  Clearly he has a lot of skills.

        18               I also heard that he believes, from

        19          speaking with relatives, that his biological

        20          mother abused alcohol when she was pregnant

        21          and that when he was born he had some features

        22          generally associated with fetal alcohol

        23          syndrome disorder that he somehow outgrew.

        24          It is difficult for me to assess the weight

        25          and effect of this information.  There is

        26          no evidence of an actual diagnosis, and my

        27          understanding is that FASD is not something






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         1          that a person can simply outgrow, although a

         2          person can learn skills to help cope with the

         3          condition.  Maybe in his case it was more a

         4          question of physical features that disappeared

         5          as he got older, I do not know.

         6               I also heard that both Mr. Weninger's

         7          biological parents passed away sometime ago

         8          from illnesses.  He also lost an adoptive sister

         9          who passed away when she was still fairly young,

        10          35 years old.  She suffered from diabetes.  So

        11          like many aboriginal offenders who come before

        12          our Courts he has experienced a fair bit of

        13          loss in his life.  He started using and abusing

        14          alcohol at a young age, which is also something

        15          we frequently hear about and is part of what

        16          leads young people to making destructive choices

        17          and run into problems with the law.

        18               I am satisfied that despite his good

        19          fortune in being adopted by a supportive

        20          and healthy family there are things in

        21          Mr. Weninger's background that are relevant

        22          for the purposes of assessing what a fit

        23          sentence is for this offence and going to

        24          the root cause of his behavior.  At the same

        25          time, the paramount considerations on sentencing

        26          have to be denunciation and general deterrence

        27          for reasons that I will get into in a moment,






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         1          and I do not think that the Gladue and Ipeelee

         2          factors that are present here are such that

         3          they can serve to significantly reduce his

         4          level of blameworthiness for this offence

         5          and result in a much more lenient sentence

         6          than would otherwise be the case.

         7               This takes me to the principles of

         8          sentencing that I must apply in deciding

         9          this case and an examination of the case law.

        10          Counsel have submitted various cases for my

        11          consideration, and I have also refreshed my

        12          memory with a few others that have talked

        13          about the principles that apply in domestic

        14          violence cases.

        15               The purpose and principles of sentencing

        16          are set out in the Criminal Code, and I will

        17          not refer to all of them here.  The fundamental

        18          sentencing principle is proportionality.

        19          A sentence should be proportionate to the

        20          seriousness of the offence and the degree of

        21          blameworthiness of the offender.  Sentencing

        22          in the area of domestic violence engages certain

        23          considerations that are specific to the nature

        24          of that unfortunately still very prevalent social

        25          problem.

        26               In 1992 the Alberta Court of Appeal

        27          had occasion to comment on this in the case






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         1          of R. v. Brown, (Alta. C.A.) [1992] A.J. No.

         2          432.  In that case the Court was dealing with

         3          appeals in three cases involving wife assaults.

         4          It took the opportunity to comment about what

         5          the paramount sentencing considerations are when

         6          dealing with this type of crime.  Although that

         7          case is now over 20 years old, in my view the

         8          things that the Court of Appeal said in it remain

         9          as relevant today as they were when the case was

        10          first decided.  I will refer to that case because

        11          I think what was said in it is important to

        12          remember.

        13               The Court said many things, but started

        14          its analysis by referring to comments made by

        15          Justice Wilson in the Supreme Court of Canada

        16          decision of R. v. Lavallee (1990) 55 C.C.C.

        17          (3d) 97 (S.C.C.).  That was not a sentencing

        18          case, that was a case that dealt with the

        19          "battered wife syndrome" defence in the context

        20          of a murder charge.  But Justice Wilson said in

        21          that decision, at pages 112 and 113, among other

        22          things, this:

        23

        24               The gravity, indeed, the tragedy
                         of domestic violence can hardly be
        25               overstated.  Greater media attention
                         to this phenomenon in recent years
        26               has revealed both its prevalence
                         and its horrific impact on women
        27               from all walks of life...






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         1               ...Long after society abandoned
                         its formal approval of spousal
         2               abuse, tolerance of it continued
                         and continues in some circles to
         3               this day.

         4               Fortunately, there has been a
                         growing awareness in recent years
         5               that no man has a right to abuse
                         any woman under any circumstances.
         6               Legislative initiatives designed to
                         educate police, judicial officers
         7               and the public, as well as more
                         aggressive investigation and
         8               charging policies all signal a
                         concerted effort by the criminal
         9               justice system to take spousal
                         abuse seriously.
        10

        11               Then, and this is on page 6 of R. v.

        12          Brown, the Court of Appeal of Alberta made

        13          its own comments about its experience with

        14          the phenomenon.  It said the following:

        15

        16               This Court's experience is that the
                         phenomenon of repeated beatings of
        17               a wife by a husband is a serious
                         problem in our society.  It is not
        18               one which may be solved solely by
                         the nature of the sentencing policy
        19               applied by the courts where there
                         are convictions for such assaults.
        20               It is a broad social problem which
                         should be addressed by society
        21               outside the courts in ways which
                         it is not within our power to
        22               create, to encourage, or to finance.
                         But when such cases do result in
        23               prosecution and conviction, then the
                         courts do have an opportunity, by
        24               their sentencing policy, to denounce
                         wife-beating in clear terms and to
        25               attempt to deter its recurrence on
                         the part of the accused man and its
        26               occurrence on the part of other men.

        27






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         1               Then the Court went to establish certain

         2          guidelines or principles to assist sentencing

         3          judges who are dealing with wife assaults.  The

         4          first of these principles was that the starting

         5          point should be what the sentence would be if

         6          the assault had taken place between strangers.

         7          The next step that the Court suggested was to

         8          then consider that the fact that the assault

         9          happened in a domestic context is an aggravating

        10          factor because of the breach of trust that this

        11          represents.  Interestingly this principle, as

        12          I have already mentioned, has since then been

        13          codified: it is specifically provided for in the

        14          Criminal Code, now, that this is an aggravating

        15          factor.

        16               Today this may go without saying, or seem to

        17          go without saying, but it bears remembering that

        18          there was a time where this would not have even

        19          been considered an offence, or it might have been

        20          considered mitigating that the person assaulted

        21          was the person's spouse.  There are reasons why

        22          the law has evolved in this way and those reasons

        23          must be borne in mind.

        24               The next thing that the Court said in

        25          R. v. Brown is that one of the sentencing

        26          objectives in dealing with these types of

        27          matters is to foster the rehabilitation of






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         1          the offender and deter the specific offender

         2          from repeating the conduct, but that these are

         3          now the paramount considerations.  The Court

         4          said at page 7:

         5

         6               The more important principles are
                         that the sentence should be such as
         7               to deter other men from similarly
                         conducting themselves toward women
         8               who are their wives or partners
                         (what is called the principle of
         9               "general deterrence"), and that
                         the sentence should express the
        10               community's wish to repudiate such
                         conduct in a society that values
        11               the dignity of the individual (the
                         "denunciation principle").
        12

        13               Finally, the Court talked about how

        14          cautious sentencing judges should be in those

        15          cases that commonly occur in these types of

        16          situations where the very victim of the offence

        17          does not want to see the offender punished

        18          because they hope to continue the spousal

        19          relationship, are concerned about loss of income,

        20          do not want to deprive the children from their

        21          father's presence, and reasons of the sort.

        22          Those considerations are not applicable in this

        23          case as the relationship between these parties

        24          is over.  But the point is, even when the parties

        25          wish to pursue the relationship, the victim's

        26          views are not determinative and must be assessed

        27          with great caution and with the recognition






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         1          of the unique dynamics that are at play in

         2          the context of domestic violence.

         3               In summary, one way of saying it is that

         4          as I approach this case I must remember that

         5          it is not just about Mr. Weninger.  It is about

         6          him, of course, but it is not just about him

         7          and it is not just about what he did to S. A.

         8          The sentencing principles of general deterrence

         9          and denunciation require looking beyond the one

        10          case that the Court is dealing with.  The Court

        11          has to be concerned about the message that

        12          this sentence sends to the public.  It is

        13          not about making examples of people, it is

        14          not about succumbing to political or other

        15          pressures, it is not about being unduly harsh,

        16          but it is about ensuring that the sentences

        17          imposed for crimes reflect the seriousness of

        18          the crime, the importance of discouraging others

        19          from behaving in a similar way, and that those

        20          sentences reflect society's condemnation of the

        21          conduct.

        22               R. v. Brown was quoted and approved of a

        23          few years after it was decided by our own Court

        24          of Appeal in R. v. B.A., [1996] N.W.T.J. No. 7

        25          (NWTCA), and R. v. L.R.C., [1996] N.W.T.J. No.

        26          8 (NWTCA), among others.  It was applied several

        27          times by this Court and by the Territorial Court.






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         1          It, of course, does not answer the question

         2          that I have to answer today, namely, what a

         3          fit sentence is for this particular offence.

         4          But the principles that it stands for, which

         5          have been restated in different ways by different

         6          Courts over the years, remain important to bear

         7          in mind, and that is why I have taken the time

         8          to talk about that case.  As I said at the

         9          outset, over 20 years later I think it is every

        10          bit as relevant as it was when it was decided,

        11          as are the comments made by Justice Wilson in

        12          Lavallee, which I have also referred to.

        13               I now turn to the cases that the Crown and

        14          defence have provided to me.  No two cases are

        15          ever exactly alike.  It is always possible to

        16          draw some distinctions, but I found reviewing

        17          those cases quite helpful.  It is always helpful

        18          to review decisions made in other cases and

        19          assess how similar or dissimilar they are

        20          from the ones being dealt with.

        21               The first two cases filed by defence,

        22          R. v. Condo, 1995 CarswellOnt 4560, and

        23          R. v. English, 2012 CarswellNfld 345, have

        24          some elements of similarity with this one in

        25          the sense that they involve offenders who bit

        26          another person's ear.  The injuries inflicted

        27          in these cases were actually more significant






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         1          than the one here.  On the other hand, these

         2          cases did not occur in a domestic violence

         3          situation, and that is a significant

         4          distinction.

         5               They are helpful cases to some extent

         6          because, as I have said previously, the starting

         7          point in determining a fit sentence in a domestic

         8          violence situation is to think about what the

         9          sentence would be if the same assault had been

        10          perpetrated on a stranger, but that is in my

        11          view the extent to which those cases can be

        12          of assistance because the existence of a spousal

        13          relationship is a significant aggravating factor

        14          and is at the root of the sentencing principles

        15          that are paramount when dealing with such cases.

        16               The third case referred to me by defence,

        17          R. v. Olson, 2010 CarswellBC 2270, is a case

        18          from British Columbia that does involve a

        19          domestic violence situation.  The offender

        20          in that case was sentenced for fairly serious

        21          assaults against two different partners, as

        22          well as other charges, breaches of release

        23          documents and an attempt to obstruct justice.

        24               While that decision includes several

        25          statements about the seriousness of spousal

        26          violence that I completely agree with, with

        27          the greatest of respect I find the case






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         1          wholly unpersuasive as far as its result.

         2          In my view it is completely out of line with

         3          the law in this jurisdiction, and I want to

         4          spend a few moments talking more specifically

         5          about that case to make it clear why I am of

         6          that view.

         7               Mr. Olson was being sentenced for numerous

         8          charges involving crimes committed against two

         9          different women he had been in relationships

        10          with.  As I said, these included assaults,

        11          threats, breaches of bail conditions, and a

        12          charge for attempting to obstruct justice.

        13               In relation to the first complainant the

        14          offender had become controlling and abusive

        15          after she moved in with him.  She moved out at

        16          one point, but returned shortly thereafter to

        17          live with him.  After she returned he became

        18          mad at her over money issues, and in the course

        19          of the argument that followed he told her that

        20          she needed to be taught a lesson.  He pounced

        21          on her, and it appears from the decision that

        22          he was somehow mimicking the behavior of a dog.

        23          He licked her on her body and he bit her in

        24          various places of her body, including her breast

        25          area.  He let her go briefly, but then resumed

        26          his assault, banging her head against the wall

        27          and pressing his thumbs on her temples.  He later






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         1          apologized, but told her that she needed to be

         2          taught a lesson.  He added that if she ever tried

         3          to leave him again he would have her fired from

         4          her job and have a friend beat her up.

         5               There was another incident that happened

         6          about a week later, but she was able to escape.

         7          She notified the police, and that is when he was

         8          charged.  While he was out on bail he struck up

         9          a relationship with another woman a few months

        10          later, and he became controlling and abusive

        11          of her as well.  There was various incidents,

        12          ultimately one where he bit her.  He was charged,

        13          arrested, released on bail again.  Despite this

        14          he returned to her residence and threatened to

        15          kill her and her family and refused to leave.

        16          There was a further incident where he assaulted

        17          her, striking her on the head and threatened to

        18          kill her.  They were in a bathroom apparently

        19          and he would not let her leave the room.  He

        20          held a knife and threatened to stab her a hundred

        21          times, cut her head and put it in the toilet, and

        22          before doing this he had apparently disconnected

        23          the phone.

        24               A few days later, after this last assault,

        25          the police contacted her to follow up on the

        26          earlier matter for which Mr. Olson was already

        27          facing a charge.  Because of the threats he had






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         1          made to her she tried to convince the police

         2          not to proceed with that charge.  In the end,

         3          when she disclosed all of this, he was charged

         4          with attempting to obstruct justice.

         5               That accused had spent the equivalent of

         6          ten months in pre-trial custody.  On sentencing

         7          the Court was presented with a joint sentence

         8          of a three-month jail term to be served in

         9          the community as a conditional sentence.

        10          The sentencing judge found the joint submission

        11          unreasonable and he did not go along with it.

        12          Instead, he imposed a further jail term of

        13          eight months, but he did make it a conditional

        14          sentence.

        15               I certainly understand why the sentencing

        16          judge did not follow the joint submission.

        17          In this jurisdiction, and I suspect in most,

        18          it would be considered clearly outside the

        19          range for such a serious series of offences.

        20          As far as the sentence that was actually imposed

        21          in Olson, to the extent I can make an assessment

        22          based on the reported case, I do not think it is

        23          in line at all with the range of sentences that

        24          would be imposed in the Northwest Territories

        25          for similar facts.

        26               A person in the Northwest Territories who

        27          would assault partners in this way, repeatedly






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         1          breach release conditions, re-assault the same

         2          victim while on bail, especially in a spousal

         3          context, who utters threats and who tries to

         4          obstruct justice by convincing his spouse not

         5          to testify or scaring her, in this jurisdiction

         6          would ordinarily receive a significant jail

         7          term and would not be permitted to serve that

         8          jail term in the community.

         9               For those reasons, while I think R. v.

        10          Olson does include several comments that

        11          I agree with about the considerations and

        12          principles that are relevant when dealing

        13          with the case of domestic violence, in its

        14          result I do not find it persuasive.

        15               I now turn to the cases filed by the Crown.

        16          They are from this Court.  As defence counsel

        17          correctly noted, they each have certain features

        18          that distinguish them somewhat from this case.

        19               In R. v. Nitsiza, 2010 NWTSC 22, the accused

        20          was sentenced for an assault with a weapon.  He

        21          had beaten his spouse with his fist, but also

        22          used a belt and a plastic coat hanger while he

        23          was assaulting her.  He had a criminal record

        24          and was on probation at the time of the offence,

        25          but his record was not nearly as extensive as

        26          Mr. Weninger's.  The victim suffered extensive

        27          bruising to her entire body.  The decision does






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         1          not specify what type of treatment she had to

         2          receive, but she was treated first at a local

         3          nursing station and then sent out for followup

         4          treatment.  She wanted the relationship to

         5          continue and did not want the offender to receive

         6          a jail term.  A guilty plea was entered at the

         7          11th hour, on the day scheduled for the start of

         8          his trial.  The sentence imposed in that case was

         9          18 months in jail.

        10               In R. v. Tsetta, 2006 NWTSC 14, the assault

        11          was more serious than it is in this case.  It

        12          involved choking the victim to the point of

        13          unconsciousness and punching her to the face to

        14          the point of breaking her jaw.  The accused

        15          pleaded guilty shortly before his trial was set

        16          to commence.  He was also being sentenced for a

        17          breach of probation.  That probation was as a

        18          result of a conviction for an assault on the

        19          same person; that would have been an aggravating

        20          factor.  He also had a significant criminal

        21          record, although there is no indication that he

        22          had as many prior convictions for spousal assault

        23          as Mr. Weninger does.

        24               In that case the Crown was asking for

        25          a term of imprisonment in the penitentiary,

        26          and the defence was asking the Court simply

        27          to impose a shorter sentence than that.  The






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         1          sentence imposed was 20 months, 16 of which

         2          were for the assault causing bodily harm.

         3          Reviewing the decision, one must be cautious

         4          about the individual sentences imposed on

         5          each count in that case because the Court

         6          had to consider totality.  As mentioned at

         7          paragraph 18 of the decision, the Court had

         8          to consider totality not just as between

         9          the two charges it was sentencing the accused

        10          for, but also in the context of a sentence

        11          that Mr. Tsetta was already serving when he

        12          was sentenced for these offences.

        13               The last case referred to by the Crown

        14          was R. v. Mercredi, 2010 NWTSC 5.  Again, the

        15          injuries inflicted in that case were serious and

        16          required surgery.  The offender pleaded guilty to

        17          assault causing bodily harm.  It appears that he

        18          did so because he did not want his 12-year-old

        19          daughter, who had witnessed the events, to have

        20          to testify.  He had a record which included some

        21          convictions for assault, including some spousal

        22          assaults, but again, it does not appear that his

        23          record for domestic violence was as significant

        24          as Mr. Weninger's.  He had three prior such

        25          convictions, not eight.  But the most recent

        26          one had been an assault with a weapon, and for

        27          that he had received a year in jail.  This is






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         1          another case where his spouse had sent a letter

         2          to the Court pleading for leniency and expressing

         3          her wish to continue the relationship with him

         4          and expressing the hope that he would change his

         5          lifestyle.  On that case the sentence imposed was

         6          14 months imprisonment.

         7               I have considered all of these cases.

         8          The one feature that this case has and those

         9          cases do not is the fact that this is the

        10          ninth conviction that Mr. Weninger has for

        11          an assault on a spouse.  A Court must always

        12          be careful not to overemphasize a criminal

        13          record.  People should not be punished over

        14          and over again for things that they have

        15          already been sentenced for.  But the persistence

        16          of this offender's pattern in being violent

        17          towards his spouse cannot be ignored.  That

        18          pattern re-emerged remarkably quickly after

        19          his relationship with S. A. began.  It is a

        20          very frightening pattern, one that raises

        21          serious concerns for the safety of whoever

        22          Mr. Weninger's next partner will be.

        23               The sentence I impose today must address

        24          this.  It is very clear that the relatively

        25          short jail terms that were imposed on him, even

        26          after he was repeating the same conduct over and

        27          over again, have not achieved this.  The sentence






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         1          I impose today has to send a clear message to him

         2          about the seriousness and consequences of this

         3          type of conduct, and it must also send a message

         4          about how seriously this Court treats domestic

         5          violence.

         6               Mr. Weninger has said that he knows he

         7          is a better person than what it would appear

         8          on paper, and I am certain that this is true.

         9          The things that I have heard about him, as

        10          I have referred to already, suggest that he

        11          has many skills, abilities and talents, and

        12          he has obviously made some efforts during the

        13          time he has spent on remand to better himself.

        14          He has participated in AA meetings.  He has

        15          taken the Embracing Our Human Nest program.

        16          He has taken educational upgrading.  He was

        17          involved in the inmates committee and was its

        18          president for a number of months.  And he has

        19          expressed remorse.  All of those things are in

        20          his favour, and the fact that he has skills and

        21          abilities suggests that if he sets his mind to

        22          it he can be productive and not behave in this

        23          manner.

        24               He has said, and I think he is correct

        25          on that as well, he realizes that he must

        26          eliminate alcohol from his life if he is going

        27          to achieve his objective of changing his path.






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         1          He has taken treatment programs before and

         2          may need to take them again, I do not know,

         3          but I am certain that he will need support

         4          and assistance.

         5               I have listened carefully to what he has

         6          said, to his comments about being 40 and wanting

         7          to change, wanting to abide by counselling and

         8          treatment conditions and wanting to beat his

         9          addiction to alcohol.  That is really the only

        10          reason I am inclined to include probation as

        11          part of his sentence.  I say that because the

        12          reality in the past has been that probation

        13          has not been successful with him in the past.

        14          He was convicted several times for breaching

        15          probation orders, and it appears they had no

        16          effect in preventing him from re-offending.

        17          But perhaps this time probation can and will

        18          be more effective and productive than it has

        19          been in the past.

        20               Maybe Mr. Weninger really is at a crossroads

        21          today.  Either he will take a different path,

        22          and to do so he will need help, or he will

        23          continue on the same path he has been on for

        24          over a decade.  If this happens there will just

        25          be more victims and more suffering.  So for

        26          that reason I certainly think it is worthwhile

        27          to include probation as part of his sentence.






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         1          That aspect of my sentence essentially is aimed

         2          at supporting his efforts at rehabilitation,

         3          it is intended to support his efforts in making

         4          the changes that he has told the Court about,

         5          and it is also intended to provide S. A. some

         6          measure of comfort by knowing he will not be

         7          permitted to have any contact with her.

         8               The sentence I impose today, as I have

         9          referred to already, must attempt to foster

        10          Mr. Weninger's rehabilitation, but it also

        11          has to address, and in a paramount way,

        12          deterrence and denunciation for all of the

        13          reasons I have been talking about.  I am

        14          unable to conclude that those objectives will

        15          be met by imposing a sentence of time served,

        16          which would be the equivalent of a one-year

        17          sentence.  In my view, such a sentence will

        18          offend the principle of parity when one looks

        19          at cases from this jurisdiction involving

        20          serious spousal violence.  It would not

        21          adequately reflect the seriousness of this

        22          offence or the fact that Mr. Weninger is a

        23          repeat offender for this type of crime.

        24               Honestly, in my view, with his criminal

        25          record, the repetition of the assaults on S. A.

        26          and the seriousness of his conduct on the most

        27          recent of the incidents, Mr. Weninger would have






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         1          been facing a sentence in the penitentiary range

         2          had he not pleaded guilty to this offence and had

         3          been convicted after trial.  And while his guilty

         4          plea is mitigating it cannot have the effect

         5          of bringing the sentence down to a one-year

         6          sentence in all the circumstances.

         7               I would have been inclined initially to

         8          impose a sentence of two years less a day for

         9          this offence, the very maximum range available

        10          to me short of a sentence in the penitentiary

        11          range.  But having thought about it and

        12          reflected on it and taken into account the

        13          Crown's position, all the things that were

        14          said on Mr. Weninger's behalf, and especially

        15          having reminded myself of the importance of

        16          the principle of restraint, I will refrain

        17          from doing so.  Stand up please, Mr. Weninger.

        18               Mr. Weninger, for the assault causing bodily

        19          harm you committed on your spouse I sentence

        20          you to a term of imprisonment of 20 months.

        21          For the time you spent in remand I will give

        22          you credit for one year.  So there will be

        23          a further jail term of eight months in jail.

        24          You can sit down.

        25               This will be followed by a probation

        26          order for two years, and the terms will be

        27          that you keep the peace and be of good behavior.






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         1          You know what that means.  Within 24 hours of

         2          your release you are to report to Probation

         3          Services and then as directed by them.  You

         4          are to take counselling and treatment programs

         5          recommended by your probation officer including,

         6          but not limited to, the areas of alcohol

         7          addiction and anger management.  You are

         8          to have absolutely no contact directly or

         9          indirectly with S. A.

        10               Given what I have heard from Crown

        11          Counsel this morning I am not going to create

        12          an exception to this no-contact condition.

        13          There may be a time where it will be okay for

        14          you to express your apology directly to her,

        15          but she is not prepared to hear that at this

        16          point, and the Court has to respect that and

        17          you have to respect that.  I am sure the Crown,

        18          in his discussions with her, has passed on what

        19          you have said, and as I say, over time her

        20          views may change on that.  But for the period

        21          of your probation you are not to have any

        22          contact with her even if it would be for

        23          that purpose.

        24               In addition, there will be a DNA order as

        25          it is mandatory for this offence.  There will

        26          be a Section 109 firearms prohibition order;

        27          it too is mandatory.  There will be an order






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         1          for the return of any exhibits seized during

         2          this investigation if that is appropriate.

         3          By this I mean returned to the rightful

         4          owners, otherwise they will be destroyed

         5          at the expiration of the appeal period.

         6               Given the jail term that I am imposing

         7          today and the amount of time that Mr. Weninger

         8          has spent on remand I am not going to make an

         9          order for the payment of the victim of crime

        10          surcharge.  I am satisfied that it would result

        11          in hardship.

        12               The Warrant of Committal will be endorsed

        13          with the recommendation that if adequate

        14          programming is available to Mr. Weninger in

        15          the correctional facility here in Fort Smith

        16          the correctional authorities consider placing

        17          him there so as to allow him easier access to

        18          family members, and in particular given the

        19          illness of one of his uncles.

        20               Defence counsel has asked that I make a

        21          further recommendation that Mr. Weninger be

        22          considered for an early work release program.

        23          I am not going to make that recommendation.

        24          I think that Mr. Weninger has done some work

        25          trying to deal with his issues, and he has

        26          obviously done a lot of thinking, but I also

        27          think there are things he needs to continue






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         1          to work on.  It is possible that some of the

         2          programs available to him while in custody

         3          will assist him in that.

         4               The reality is that he will be looking at

         5          the prospect of very significant jail terms if

         6          he does not address the underlying issues that

         7          lead to this conduct, especially if he ever

         8          commits another crime of violence against a

         9          spouse.  So it would be in his best interest

        10          to have access to more programming and more

        11          assistance in understanding the root causes

        12          of his behavior before he is released and free

        13          to make all of his own choices again.  That

        14          whole question of his participation in whatever

        15          release programs may exist, I think, is better

        16          left with the correctional authorities, based

        17          on their assessment of his progress and their

        18          assessment of how the risk he presents can be

        19          managed.

        20               Is there anything that I have overlooked?

        21      MR. GODFREY:           Your Honour, I didn't hear

        22          the length of the firearms prohibition order.

        23      THE COURT:             I am sorry.  It will commence

        24          today and expire ten years after his release.

        25      MR. GODFREY:           Thank you.

        26      THE COURT:             Anything from defence?

        27      MR. PETITPAS:          No, Your Honour.






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         1      THE COURT:             Mr. Weninger, I do hope you

         2          are able to achieve what you have said you want

         3          to do, and I do hope that you will not ever be

         4          having to appear in a criminal courtroom again.

         5          We will close court.

         6                           -----------------------------

         7

         8                           Certified to be a true and
                                     accurate transcript, pursuant
         9                           to Rules 723 and 724 of the
                                     Supreme Court Rules.
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                                     _____________________________
        12                           Joel Bowker
                                     Court Reporter
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       Official Court Reporters
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