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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 Official Court Reporters 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. Official Court Reporters 1 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 Official Court Reporters 2 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 Official Court Reporters 3 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 Official Court Reporters 4 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, Official Court Reporters 5 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 Official Court Reporters 6 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 Official Court Reporters 7 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 Official Court Reporters 8 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 Official Court Reporters 9 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 Official Court Reporters 10 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 Official Court Reporters 11 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. Official Court Reporters 12 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. Official Court Reporters 13 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 Official Court Reporters 14 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 Official Court Reporters 15 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 Official Court Reporters 16 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 Official Court Reporters 17 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, Official Court Reporters 18 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 Official Court Reporters 19 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... Official Court Reporters 20 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 Official Court Reporters 21 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 Official Court Reporters 22 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 Official Court Reporters 23 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. Official Court Reporters 24 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 Official Court Reporters 25 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 Official Court Reporters 26 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 Official Court Reporters 27 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 Official Court Reporters 28 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 Official Court Reporters 29 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 Official Court Reporters 30 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 Official Court Reporters 31 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 Official Court Reporters 32 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 Official Court Reporters 33 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. Official Court Reporters 34 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. Official Court Reporters 35 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 Official Court Reporters 36 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. Official Court Reporters 37 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 Official Court Reporters 38 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 Official Court Reporters 39 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. Official Court Reporters 40 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. 10 11 _____________________________ 12 Joel Bowker Court Reporter 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 Official Court Reporters 41
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