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Abstract: Transcript of the Reasons for Sentence
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R. v. Paulette, 2014 NWTSC 26 S-1-CR2012000138 IN THE SUPREME COURT OF THE NORTHWEST TERRITORIES IN THE MATTER OF: HER MAJESTY THE QUEEN - vs. - JASON FRANK PAULETTE _________________________________________________________ Transcript of the Reasons for Sentence by The Honourable Justice S. H. Smallwood, at Fort Smith in the Northwest Territories, on February 28th A.D., 2014. _________________________________________________________ APPEARANCES: Ms. K. Lakusta: Counsel for the Crown Mr. M. Hansen: Counsel for the Accused ---------------------------------------- An order has been made banning publication of the identity of the Complainant/Witness pursuant to Section 486.4 of the Criminal Code of Canada Official Court Reporters 1 THE COURT: Jason Frank Paulette was 2 found guilty by a jury on January 17th, 2014 3 for committing a sexual assault causing bodily 4 harm which occurred on December 8th, 2011. 5 Sentencing was adjourned and yesterday I heard 6 submissions from the Crown and the defence as 7 to what sentence should be imposed. 8 There is a publication ban prohibiting the 9 publication and broadcast of any information 10 that could identify the complainant in this 11 matter. I don't intend to refer to the 12 complainant by name but if there are portions 13 of my reasons where I do refer to her by name, 14 I am going to direct the court reporter to 15 refer to the complainant by her initials. 16 There can be no publication or broadcast of 17 any information that could disclose the 18 complainant's identity. 19 The Crown is seeking a sentence of six to 20 eight years imprisonment less credit for 21 remand time, and Mr. Paulette's counsel says 22 an appropriate sentence is three and a half to 23 four years less credit for remand time. 24 The evidence heard at trial was that the 25 complainant went to Mr. Paulette's residence 26 the evening of December 7th, 2011. 27 Mr. Paulette is her cousin and she went over Official Court Reporters 1 1 because she knew that his common-law spouse 2 was out of town and she thought that she would 3 help him out with his children and have dinner 4 with him. She spent the evening at his 5 residence and they smoked marijuana and drank 6 beer. After dinner, the complainant went to 7 the liquor store and bought some beer and when 8 she returned, they smoked the marijuana and 9 drank the beer. Mr. Paulette also touched up 10 a tattoo on the complainant's ankle with his 11 tattoo gun. 12 While Mr. Paulette was working on the 13 complainant's tattoo, the complainant was 14 texting a friend on her phone. She was 15 texting her friend throughout the evening. 16 Mr. Paulette got mad at the complainant for 17 being constantly on the phone. She thought it 18 was a joke at first but she realized he was 19 serious when he slapped the back of her head. 20 She was scared and put her phone away. 21 The complainant then went upstairs to the 22 bathroom. While she was in the bathroom she 23 blacked out. When she came to again, she was 24 on the bathroom floor and Jason Paulette was 25 choking her. She faked being unconscious so 26 he would get off of her, which he did. He 27 went downstairs and she pulled up her pants Official Court Reporters 2 1 and went downstairs. The complainant then 2 began freaking out and asking Mr. Paulette how 3 he could do this to her. Mr. Paulette punched 4 her in the face, which cut her chin. Blood 5 went all over her clothes and on the floor. 6 The complainant continued yelling at 7 Mr. Paulette and he grabbed her by the neck 8 and pushed her to the floor and used her hair 9 to mop up the blood. He told her to "shut the 10 fuck up, you stupid bitch". The complainant 11 blacked out again and the next thing she 12 remembered was putting on her shoes and 13 running out the door into the minus 40 degree 14 weather, leaving behind her jacket, cell 15 phone, iPod, and a bag of clothes. When she 16 left the residence she did not know where 17 Jason Paulette was. 18 The complainant ran over to her friend 19 Ashleigh Stokes' residence which was a short 20 distance away. At Ms. Stokes' residence, she 21 knocked on the door. When there was no 22 immediate answer, she began banging on the 23 door, yelling and crying. 24 Ms. Stokes answered the door. The 25 complainant, in her evidence, testified that 26 Ashleigh Stokes asked her what happened and 27 she tried her best to explain. She was unable Official Court Reporters 3 1 to recall the words that she said when talking 2 to Ashleigh Stokes. There were portions of 3 the night that the complainant does not 4 remember as a result of blacking out due to 5 the consumption of alcohol and marijuana. She 6 does not recall any sexual relations with 7 Jason Paulette that night and said that she 8 did not consent to any sexual relations with 9 Jason Paulette. 10 Ashleigh Stokes also testified at the 11 trial and her evidence corroborates the 12 complainant's testimony about when the 13 complainant came to her residence early that 14 morning. 15 Ms. Stokes said that she was asleep at her 16 residence that morning. At around 4:30, she 17 heard knocking on her door. Initially she was 18 not going to answer the door but then she 19 heard yelling and screaming and realized that 20 it was the complainant so she got up and 21 answered the door. When she opened the door, 22 she saw the complainant, who was crying, her 23 hair was messy, there was blood on her face, 24 and she was shivering. She was not wearing a 25 jacket. She was wearing a sweater and jeans 26 which was not appropriate for the cold 27 weather. Official Court Reporters 4 1 The complainant said to Ashleigh Stokes 2 "my cousin raped me" over and over again. She 3 asked the complainant "your cousin who?" to 4 which the complainant responded "my cousin 5 Jason raped me". 6 Ashleigh Stokes took the complainant to 7 the hospital. A sexual assault examination 8 was later completed and Jason Paulette's 9 spermatozoa was located in the vaginal swab 10 and vaginal pool sample taken from the 11 complainant. 12 As the jury convicted Mr. Paulette of 13 sexual assault causing bodily harm, they must 14 have accepted the complainant's evidence about 15 the violence inflicted upon her by Mr. 16 Paulette which caused the injuries depicted in 17 the photographs. And they must have also 18 concluded that the assault causing bodily harm 19 occurred in circumstances of a sexual nature. 20 Defence counsel suggests that I cannot 21 conclude that the sexual intercourse between 22 Mr. Paulette and the complainant was 23 nonconsensual. He says there is simply not 24 enough evidence to draw a conclusion and that 25 a sexual assault causing bodily harm can arise 26 in circumstances where there was consensual 27 sexual contact which caused bodily harm. Official Court Reporters 5 1 In circumstances where the jury's verdict 2 leaves some ambiguity with respect to the 3 facts on which they have come to their 4 verdict, it is the obligation of the 5 sentencing Judge to come to their own 6 independent determination of the facts 7 consistent with the jury's verdict. I do not 8 have to come to a complete theory of the facts 9 but only to make those factual determinations 10 necessary to decide the appropriate sentence. 11 That is from The Queen v. Ferguson, a decision 12 of the Supreme Court of Canada from 2008. 13 In this case, the complainant, despite the 14 problems with her memory, was clear about what 15 she did remember. 16 She testified that in the basement, Jason 17 Paulette slapped the back of her head when she 18 was spending too much time on her phone. She 19 was scared and put the phone away. Prior to 20 this, they had not had sexual intercourse and 21 there had been no discussion of sexual 22 intercourse or any interactions of a sexual 23 nature. Then the complainant went upstairs to 24 the bathroom. While sitting on the toilet, 25 she blacked out. When she came to, she was on 26 the bathroom floor being choked by Jason 27 Paulette. When she feigned unconsciousness, Official Court Reporters 6 1 he stopped choking her and left the bathroom. 2 She pulled up her pants and went downstairs to 3 confront him and wanted to know how he could 4 do this to her. His response was to punch her 5 in the face which caused her chin to bleed. 6 She continued to yell at him, and he grabbed 7 her by the neck and pushed her to the floor 8 and used her hair to mop up the blood. She 9 blacked out again and when she came to, she 10 fled the residence. 11 Sometime during this series of events, 12 Jason Paulette would have had sexual 13 intercourse with the complainant. While the 14 complainant has no memory of the sexual 15 intercourse, I conclude that it was 16 nonconsensual. And I come to this conclusion 17 based upon the evidence and the circumstances 18 as related at trial. 19 The complainant blacked out in the 20 bathroom and her memories following that event 21 all involve Jason Paulette choking or 22 assaulting her. When she comes to in the 23 bathroom, she is being choked and her pants 24 are down and Jason Paulette is on top of her. 25 When she goes downstairs, he again assaults 26 her and she blacks out. It seems incredible 27 that consensual sexual intercourse would have Official Court Reporters 7 1 occurred in these circumstances. 2 In addition, the complainant, when she 3 fled to Ashleigh Stokes' residence, told 4 Ashleigh Stokes that her cousin Jason had 5 raped her. This was a spontaneous utterance 6 which was subject to a voir dire at the trial. 7 While the complainant's injuries corroborate 8 that she had been assaulted, no one at that 9 point would suspect that there had been a 10 sexual aspect to what had happened to her 11 until she had said that she had been raped. 12 And when I say that, I mean she did not show 13 up at Ashleigh Stokes' residence naked or 14 missing clothing so that it would be clearer 15 to an observer that something sexual might 16 have happened. The complainant had no 17 knowledge of whether there would be any DNA 18 evidence and only she, when speaking with 19 Ashleigh Stokes, would have had knowledge of 20 the sexual contact between her and the 21 accused. At that point she had no reason to 22 lie about being sexually assaulted by the 23 accused. So when she said to Ashleigh Stokes 24 that her cousin Jason raped her, why would she 25 say that unless the intercourse between them 26 was not consensual? 27 The complainant's level of intoxication Official Court Reporters 8 1 also raises concerns about her capacity to 2 consent to sexual intercourse. She had drank 3 beer and smoked marijuana to the point that 4 she blacked out several times during the 5 evening. As Jason Paulette was present while 6 the complainant consumed drugs and alcohol, he 7 should have been aware that the complainant 8 had consumed enough drugs and alcohol that her 9 capacity to consent due to intoxication might 10 be compromised. 11 In the circumstances, I find that Jason 12 Paulette had nonconsensual sexual intercourse 13 with the complainant. As stated above, I do 14 not need to come to a complete theory about 15 the facts so, other than saying that the 16 nonconsensual sexual intercourse happened 17 during a period when the complainant was 18 blacked out, I do not think it necessary to 19 come to a conclusion as to exactly when it 20 occurred in the sequence of events that night. 21 The complainant did not provide a victim 22 impact statement. Her father Wilfred Paulette 23 provided a brief one in which he wrote about 24 the impact this offence has had on the 25 complainant. It has been difficult for the 26 complainant to see the accused after the 27 offence, seeing him walking around on the Official Court Reporters 9 1 street as he was on release for a period of 2 time. She has had struggles with alcohol and 3 it continues to be tough for her to deal with 4 the offence. She is going to school and has 5 the support of her family. 6 I have no doubt that based on the facts, 7 hearing the complainant testify and seeing the 8 photographs of her injuries, that it has been 9 difficult for her. She suffered physical 10 injuries and emotional trauma. It will take 11 her time to heal and the psychological scars 12 may never heal. 13 Mr. Paulette, you and your lawyer spoke of 14 your problems, the issues that you need to 15 deal with, and the abuse that you suffered 16 while growing up. I hope you realize that 17 what you did to the complainant is similar to 18 what happened to you. You took the trust, the 19 trust of a family member, the relationship 20 that you had with the complainant, and broke 21 it in a violent and degrading way. You hurt 22 her physically and mentally, and I am not sure 23 that you fully appreciate that. But I hope 24 that, as part of a healing process that you do 25 come to that realization. 26 Mr. Paulette has a criminal record which 27 has been filed as an exhibit, and it is a Official Court Reporters 10 1 significant one. By my count, there are 33 2 convictions on his criminal record and there 3 are some convictions which raise concerns for 4 the Court. 5 Mr. Paulette's criminal record begins in 6 1993 with property offences and includes 7 numerous offences against the administration 8 of justice over the years. There are also 9 offences of violence. In 1995, he was 10 convicted of assault causing bodily harm and 11 received a fine and probation. In 1999, he 12 was convicted of assault and received a 13 sentence of a suspended sentence and 14 probation. In 2001, he was convicted of 15 assault, spousal assault, and a spousal 16 assault causing bodily harm, along with other 17 offences, and received a global sentence of 12 18 months. In 2010, Mr. Paulette was convicted 19 of a sexual assault and received a sentence of 20 21 months which was essentially a sentence of 21 time served as he had served ten and a half 22 months of remand time which was credited at 23 the rate of two to one. He was at that time 24 placed on a three year probation order which 25 required him to comply with a number of 26 conditions. And following his arrest on this 27 offence, he has three further convictions Official Court Reporters 11 1 which have been entered for failing to comply 2 with conditions of his release. 3 Mr. Paulette is an aboriginal person and 4 this requires me to consider Section 718.2(e) 5 of the Criminal Code which states: 6 All available sanctions other than 7 imprisonment that are reasonable 8 in the circumstances should be 9 considered for all offenders, with 10 particular attention to the 11 circumstances of aboriginal 12 offenders. 13 The Supreme Court of Canada has given 14 directions to trial courts in how to interpret 15 this section in Gladue and, more recently, in 16 Ipeelee. I have considered the principles set 17 out in those cases and the requirement to 18 consider the unique systemic or background 19 factors which may have played a part in 20 bringing an aboriginal offender before the 21 Court and the type of sentencing procedures 22 and sanctions which might be appropriate 23 taking into account the circumstances of an 24 aboriginal offender's background. 25 I have heard that Jason Paulette is a 26 child of parents who attended residential 27 school and has suffered as a result of what Official Court Reporters 12 1 happened to them. His parents struggled with 2 alcohol, abuse was a part of their lives, and 3 their ability to parent was negatively 4 affected by their residential school 5 experience. This obviously affected 6 Mr. Paulette to be surrounded, to witness this 7 on a daily basis can only have a negative 8 effect on a child. 9 I have also heard that Mr. Paulette was a 10 victim of sexual abuse by a family member and 11 it is apparent this has also had a profound 12 effect upon him and it is one that he is only 13 recently beginning to deal with. 14 Counsel for Mr. Paulette made thorough and 15 thoughtful submissions regarding 16 Mr. Paulette's background, and I won't repeat 17 everything that counsel and Mr. Paulette said 18 yesterday, but it is apparent that he has been 19 negatively affected by many of the factors 20 that are referred to in Gladue and Ipeelee. 21 But within this, I also heard some positive 22 things. 23 Mr. Paulette has a close relationship with 24 his mother and was very fond of his 25 great-great grandmother with whom he lived for 26 a period of time. They were, and in the case 27 of his mother, continue to be loving and Official Court Reporters 13 1 supportive parts of his life. He is also in a 2 loving relationship with his common-law spouse 3 who is committed to standing by him and 4 dealing with their problems. He has four 5 children who he loves and wants to be a better 6 father to. 7 Mr. Paulette's situation, while unique to 8 him, is not unusual in this jurisdiction. It 9 is unfortunate, heartbreaking really, but many 10 offenders who come before this Court have 11 lives that have been devastated by abuse and 12 the abuse of alcohol. Offenders have 13 witnessed their parents and family members 14 abuse each other and abuse alcohol. They have 15 begun abusing alcohol often at a relatively 16 young age and continue to do so as they grow 17 up and have children, and their abuse of 18 alcohol begins to affect their children. It 19 is a cycle that I hope you can break, Mr. 20 Paulette; if not for your sake then for your 21 children. 22 I accept there are factors in 23 Mr. Paulette's background which are relevant 24 to his aboriginal heritage and which 25 contribute to him being before this Court 26 today. At the same time the paramount 27 sentencing principles have to be deterrence Official Court Reporters 14 1 and denunciation, which I will discuss 2 further. Overall, I do not think that the 3 factors referred to in Gladue and Ipeelee that 4 are applicable here are such that they can 5 involve consideration of anything but a 6 custodial sentence; and indeed, counsel for 7 Mr. Paulette is not suggesting that there is a 8 viable alternative to custody. 9 As acknowledged in Gladue, the more 10 violent and serious the offence the more 11 likely that a sentence of imprisonment for 12 aboriginal and non-aboriginal offenders will 13 be the same or close to the same. I have 14 taken the factors in Section 718.2(e) into 15 account in the overall sentencing. 16 There are a number of sentencing 17 principles that are engaged in this case. The 18 purposes and principles of sentencing are set 19 out in the Criminal Code. I am not going to 20 refer to all of them but I have considered the 21 principles enunciated in Section 718 to 22 Section 718.2. 23 The fundamental principle of sentencing is 24 that a sentence must be proportionate to the 25 gravity of the offence and the degree of 26 responsibility of the offender. The 27 fundamental purpose of sentencing is to Official Court Reporters 15 1 contribute to respect for the law and the 2 maintenance of a just, peaceful and safe 3 society by imposing just sanctions that have 4 one or more of the following objectives: to 5 denounce unlawful conduct; to deter the 6 offender and other persons from committing 7 offences; to separate offenders from society, 8 where necessary; and to assist in 9 rehabilitating offenders; to provide 10 reparations for harm done to victims or to the 11 community; to promote a sense of 12 responsibility in offenders, and 13 acknowledgment of the harm done to victims and 14 to the community. All of these factors are 15 applicable to one extent or another in this 16 case. 17 Crown and defence have each filed a book 18 of authorities with several cases and have 19 made very thorough helpful submissions. None 20 of the cases are exactly the same as this case 21 and even if they were, each sentencing has to 22 be approached individually taking into account 23 the facts of the offence and the circumstances 24 of the individual offender. The cases are 25 helpful in determining an appropriate range of 26 sentence and determining what sentencing 27 principles should be considered. Official Court Reporters 16 1 Sexual assault is a crime that occurs far 2 too often in the Northwest Territories. 3 As stated in The Queen v. Lafferty, 2011 4 NWTSC 60 at paragraph 37: 5 Sexual assault is a crime that is terribly prevalent in the 6 Northwest Territories. This Court, sadly, has cause to comment 7 on this fact very often because this Court very often has the task 8 of sentencing people for the crime of sexual assault. These cases 9 seem to be happening in almost every community in this 10 jurisdiction. They are committed by young people, middle-aged 11 people, sometimes older people. In particular, sexual assaults 12 committed against women or young girls who are passed out or 13 intoxicated to the point of not being able to resist are very 14 frequent. 15 And it goes on later in the paragraph, 16 The fact that it happens so frequently does not make it any 17 more understandable, does not make it any less disturbing, and 18 certainly does not make it any less wrong. 19 20 I completely agree with the comments 21 expressed in Lafferty. It is sometimes hard 22 to believe that this offence occurs so often 23 in this jurisdiction, that a person can 24 demonstrate a complete disregard for the 25 sexual integrity of another person. And when 26 it is combined with the violence that was 27 present in this case, it is disheartening. Official Court Reporters 17 1 Because of the prevalence of this type of 2 offence in this jurisdiction, Courts have 3 repeatedly said that the sentencing principles 4 of deterrence and denunciation should be 5 emphasized. 6 Turning to the factors that are applicable 7 in this case, I do not see that there are any 8 mitigating factors. For example, Mr. Paulette 9 has not entered a guilty plea which can be a 10 significant mitigating factor. Mr. Paulette 11 had a trial, which is his right and it is not 12 aggravating that he did so, but what that 13 means is he does not get the mitigating effect 14 on sentencing of a guilty plea. 15 Mr. Paulette has not expressed any remorse 16 for this offence. An expression of remorse, 17 even after a trial, can have some weight. He 18 said that he hoped that the complainant would 19 get the treatment that she needed but I did 20 not hear any expression of remorse for what he 21 did to the complainant. 22 There are a number of aggravating factors 23 in this case. 24 The complainant was Mr. Paulette's first 25 cousin. They had a family relationship and 26 there was an element of trust in that 27 relationship. I agree with defence counsel Official Court Reporters 18 1 that this was not a trust relationship per se 2 as exists in a spousal relationship or a 3 student/teacher relationship, but there is an 4 element of trust that arises in a family 5 situation. The complainant felt comfortable 6 enough to go to her cousin Mr. Paulette's 7 residence when his common-law spouse was away 8 and wanted to help him with his children. Mr. 9 Paulette's actions have shattered that trust 10 and this has had a broader impact than just on 11 the relationship between Mr. Paulette and the 12 complainant. It has caused a rift in their 13 family. 14 It is also aggravating that this offence 15 occurred while children were present in the 16 home. One of the more heartbreaking parts of 17 the evidence was hearing the complainant 18 testify that during the events one of the 19 children of Mr. Paulette was present and 20 witnessed part of what her father did to the 21 complainant. The complainant testified that 22 the daughter was crying. Just as Mr. Paulette 23 remembers his father abusing his mother, his 24 daughter will likely remember what she saw and 25 be negatively affected by what she witnessed. 26 The complainant in this case suffered 27 injuries which is obvious because Mr. Paulette Official Court Reporters 19 1 was convicted of sexual assault causing bodily 2 harm. But aside from that, there was 3 considerable violence inflicted on the 4 complainant. She was slapped, choked, 5 punched, pushed to the floor and her hair used 6 to mop up her own blood. Any one of these 7 acts of violence are objectionable but the 8 extreme violence inflicted upon the 9 complainant by Mr. Paulette is reprehensible. 10 I have already referred to Mr. Paulette's 11 criminal record but I want to speak more 12 specifically about the prior sexual assault on 13 his criminal record. 14 He was convicted of sexual assault on 15 April 26th, 2010. At that time he received a 16 sentence of time served which, as I mentioned, 17 was equivalent to 21 months in jail and a 18 three year probation order was imposed upon 19 him. He was required to comply with a number 20 of conditions, including not to consume or 21 possess alcohol. So at the time of this 22 offence he was still on his probation order, 23 he was consuming alcohol, and committed the 24 same type of offence for which he was on 25 probation. So I find that it was aggravating 26 that he was on probation at the time of this 27 offence and that he was specifically violating Official Court Reporters 20 1 a term of his probation. 2 As I have mentioned, this is an offence 3 which was committed while Mr. Paulette was 4 under the influence of alcohol and drugs. Mr. 5 Paulette's counsel tells me that Mr. Paulette 6 wants to get help for his problems, including 7 his alcohol problem, and I think that 8 acknowledging that you have a problem is a 9 good first step and there are many more steps 10 to go in the healing process but I am hopeful 11 that this is a beginning. 12 The Crown filed a transcript of the 13 reasons for sentence from 2010 in their book 14 of authorities. In that case, Mr. Paulette 15 pled guilty on the day of his jury trial. The 16 facts in that case were that the complainant, 17 who was 16 years old, went to her aunt's house 18 because she was locked out of her residence. 19 Mr. Paulette was there and he was known to 20 her. She went into the house. She went to 21 the bathroom and when she emerged, 22 Mr. Paulette forced her into a bedroom and 23 onto a bed. He held her by the neck and had 24 sexual intercourse with her. 25 There are some similarities to the case 26 before the Court today. I note the comments 27 of Justice Cooper, when he stated at page 9: Official Court Reporters 21 1 Let there be no mistake. This was a brutal and egregious act of 2 violence, a predatory offence where the accused displayed total 3 disregard for the personal and bodily integrity of this 4 16-year-old girl. 5 In that case, there was a joint submission 6 of 21 months which, as I have said, was a 7 sentence of time served. The Court, in 8 passing sentence, acknowledged that the 9 sentence may seem inadequate but considered it 10 a unique case given the strong family support 11 and prospects for rehabilitation. I view the 12 sentence that you received, Mr. Paulette, in 13 the circumstances of that case as at the low 14 end of the range. Indeed, acknowledging the 15 principles that bind a Court when a joint 16 sentence is presented, I am of the view that 17 you received a significant break. And I am 18 saying this because I think that you were 19 given an opportunity that many offenders are 20 not. The Court took a chance on your 21 rehabilitation and heard that you were taking 22 programs while in jail and had strong family 23 support and strong prospects for 24 rehabilitation. So it is unfortunate that you 25 are here again today. 26 Now I have heard that your father was not 27 there for you, did not follow up with the Official Court Reporters 22 1 commitment that he made, and that too is 2 unfortunate. But ultimately you are here 3 today in the same position because of the 4 choices that you made. And that's where 5 taking responsibility for who you are and what 6 you have done comes into play. Despite your 7 past and the failures of your family, you are 8 still responsible for your actions. 9 So, Mr. Paulette, the sentence that I am 10 about to impose I hope sends several messages. 11 First, it expresses society's condemnation of 12 your conduct. What that means is that the 13 people of the Northwest Territories, the 14 people of Fort Smith, do not think it is okay 15 to violently sexually assault someone. They 16 are disgusted by this type of behaviour. 17 Secondly, it must deter other people from 18 contemplating doing this type of thing. So it 19 has to tell people that this is the type of 20 sentence that you will face if you choose to 21 act the way that Mr. Paulette did, and 22 hopefully this sentence will make them think 23 twice. 24 And lastly, it must specifically deter 25 you, and when I say that I mean you never 26 sexually assault another person again. 27 I also think it is necessary to separate Official Court Reporters 23 1 you from society. As it stands, you pose a 2 risk to women, particularly when you are under 3 the influence of alcohol or drugs. And 4 separation from society will also permit you 5 to take programs and attempt to deal with your 6 issues so hopefully you can be rehabilitated 7 and I do think your rehabilitation is 8 important. But in the circumstances, it 9 cannot be the primary sentencing objective but 10 it is still an important factor. 11 Mr. Paulette was originally released on 12 this -- he was in custody on this offence from 13 December 8th, 2011 to April 4th, 2012. He was 14 on consent remand. He was released after a 15 show cause and was on conditions for a period 16 of time but was placed back into custody again 17 on October 17th, 2013. He was sentenced on 18 November 20th, 2013 to a sentence of four 19 months for two breaches. At that time his 20 pre-trial custody to that point, which I take 21 being the custody that he had most recently 22 served, was taken into account, so the 118 23 days which had previously been his remand 24 time, was not taken into account in that 25 sentence. So his sentence on the four months 26 would have expired on January 15th, 2014. On 27 January 23rd, 2014, Mr. Paulette was sentenced Official Court Reporters 24 1 to another 30 days consecutive for another 2 breach. And that sentence would have expired 3 on February 18, 2014. 4 So for this offence, today, there are 5 three periods that I understand for which 6 Mr. Paulette has not received credit for his 7 pre-trial custody. So the period from 8 December 8th, 2011 to April 4th, 2012; from 9 January 15th to 23rd; and February 18th to 10 today, of this year, which comes to 126 days 11 of pre-trial custody. 12 Now, pursuant to Section 719(3.1) of the 13 Criminal Code, the maximum credit available 14 for Mr. Paulette's remand time could be up to 15 one and a half days for each day spent in 16 custody, which can be granted if the 17 circumstances justify it. 18 The issue of what circumstances justify an 19 increase up to one and a half days credit for 20 each day in custody has been the subject of 21 some litigation and differences across Canada. 22 However, it has been accepted in this Court 23 that the circumstances that can justify 24 enhanced credit do not have to be exceptional 25 or only occur in rare situations. They do 26 however have to be applicable to the specific 27 accused who is before the Court. Official Court Reporters 25 1 As was stated in The Queen v. Green, 2013 2 NWTSC 20, at paragraph 78: 3 There is nothing automatic about enhanced credit. The onus is on 4 the person being sentenced to show on a balance of probabilities that 5 the circumstances do justify enhanced credit being granted. 6 7 This can be done in a variety of ways - 8 through viva voce evidence or, as was done in 9 this way, counsel for Mr. Paulette, who is an 10 Officer of the Court, having spoken with 11 somebody who is familiar and reliable with 12 respect to the circumstances of the offender's 13 pre-trial custody. 14 So in this case, counsel for Mr. Paulette 15 spoke with Richard Keppel who is a sentence 16 administrator with Corrections and familiar 17 with Mr. Paulette's circumstances so counsel 18 for Mr. Paulette is seeking enhanced credit 19 for his remand time. His basis for doing so 20 is that he would have earned remission for 21 most of the period he would have been a 22 serving prisoner, if he had been a serving 23 prisoner, and that he was not able to take 24 programs for a couple of reasons; one, he was 25 the lowest priority as he was a remand 26 prisoner and not a serving prisoner, so he has 27 the lowest priority for programs; and that Official Court Reporters 26 1 there were no programs that were offered while 2 he was in remand that were appropriate for his 3 situation, although he did attend AA which I 4 understand is available to all persons who are 5 in custody. 6 With respect to remission, as was noted in 7 The Queen v. Manilaq, 2012 NWTSC 48: 8 Where there is credible information that is presented to 9 the Court that a prisoner on remand would have earned remission 10 if they had been a serving prisoner, that is a relevant 11 consideration in deciding whether credit for remand time should be 12 calculated on an enhanced basis. 13 I imagine there are a variety of other 14 circumstances that could justify enhanced 15 credit being given for remand time. And it 16 could even be that when a person has behaved 17 very well on remand time, the Court may decide 18 not to grant credit on an enhanced basis. In 19 my view, the exercise of discretion in the 20 area has to be based on the specific 21 circumstances of each case and not by applying 22 an automatic approach. 23 In this case, I am told that Mr. Paulette 24 was involved in a couple of minor incidents 25 while in remand such that if he were a serving 26 prisoner, he would have lost approximately 27 five days remission. In the circumstances, I Official Court Reporters 27 1 am not satisfied that Mr. Paulette should earn 2 enhanced credit for his remand time. I am 3 going to adjust his pre-sentence credit 4 slightly in order to simplify the calculations 5 of Mr. Paulette's sentence. 6 Please stand, Mr. Paulette. 7 Taking into account the circumstances, 8 your aboriginal background and the applicable 9 sentencing principles, I am satisfied that an 10 appropriate sentence for the sexual assault 11 causing bodily harm is five years 12 incarceration. You will be given credit for 13 the 126 days pre-sentence custody, which I 14 will round up to five months for simplicity, 15 leaving a sentence of four years and seven 16 months to be served. 17 You may sit down. 18 I will recommend that you be given 19 consideration to take any sexual offender 20 treatment and substance abuse treatment 21 programs that are suitable as soon as it is 22 possible. 23 As well, pursuant to Section 743.21, 24 there will be an order prohibiting you from 25 contacting the complainant directly or 26 indirectly while you are in custody. 27 With respect to the ancillary orders, Official Court Reporters 28 1 there will be a firearm prohibition order 2 pursuant to Section 109 of the Criminal Code. 3 It will begin today and end ten years after 4 your release from prison. 5 Having heard the submissions of counsel 6 yesterday, and I heard the request today with 7 respect to a Section 113 exemption, I am 8 satisfied in the circumstances that a 9 Section 113 exemption should be granted so 10 that you can apply to the chief firearms 11 officer or the registrar for a license or 12 registration certificate subject to any 13 conditions that they may impose. 14 The sexual assault causing bodily harm is 15 a primary designated offence and there will be 16 a DNA order. 17 There will also be an order pursuant to 18 the Sexual Offender Information Registration 19 Act. And as you have previously been subject 20 to a SOIRA order for the conviction in 2010, 21 the duration of the order will be for life. 22 Mr. Paulette, I hope that you will take 23 the opportunity offered by this sentence to 24 try and address some of your problems. It 25 seems clear to me, and I think that you 26 recognize as well based on what your lawyer 27 said yesterday and what you said, that you Official Court Reporters 29 1 need help and so I hope that you will follow 2 up on that because at this point, it is really 3 up to you. The corrections system can offer 4 you all of the programs they want but unless 5 you are willing to commit and take them and 6 really make an effort, then that's when we 7 will know whether there is going to be 8 success. 9 If you want to be there for your children, 10 to be a better father for your children than 11 your father was to you, then I think you need 12 to do something about that and it's not too 13 late to change and become a positive role 14 model for your children. 15 Counsel, neither counsel made any 16 submissions with respect to the victim of 17 crime surcharge. 18 MR. HANSEN: I would ask that it be 19 waived in the circumstances. The offence 20 occurred before the recent amendments and it 21 would be a hardship given that he will be 22 incarcerated for some time. I understand it 23 is a, relatively speaking, small amount of 24 money but for a person of Mr. Paulette's 25 means, it is a larger amount than would occur 26 to any of us who are gainfully employed during 27 that time. Official Court Reporters 30 1 THE COURT: Thank you. Ms. Lakusta. 2 MS. LAKUSTA: No opposition to that, Your 3 Honour. 4 THE COURT: I agree that as this offence 5 occurred prior to the changes, which make it 6 mandatory, that it is still open to me to 7 waive the victim of crime surcharge because of 8 hardship and given the sentence that has been 9 imposed and having heard about Mr. Paulette's 10 circumstances, I am satisfied that it should 11 be waived as a result of hardship. 12 All right, counsel, is there anything 13 else? 14 MS. LAKUSTA: Not from the Crown. 15 THE COURT: I want to thank you, 16 counsel, for your work on this trial and your 17 submissions. 18 MR. HANSEN: Thank you. 19 ------------------------------------- 20 Certified to be a true and accurate transcript pursuant 21 to Rules 723 and 724 of the Supreme Court Rules, 22 23 24 25 26 ____________________________ 27 Lois Hewitt, Court Reporter Official Court Reporters 31
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