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Abstract: Transcript of the Reasons for Sentence
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R. v. Menacho, 2013 NWTSC 98 S-1-CR2013000033 IN THE SUPREME COURT OF THE NORTHWEST TERRITORIES IN THE MATTER OF: HER MAJESTY THE QUEEN - vs. - MATTHEW EARL MENACHO _________________________________________________________ Transcript of the Reasons for Sentence by The Honourable Justice S. H. Smallwood, at Norman Wells in the Northwest Territories, on November 6th A.D., 2013. _________________________________________________________ APPEARANCES: Ms. A. Paquin: Counsel for the Crown Mr. M. Martin: Counsel for the Accused ---------------------------------------- Charge under s. 266, s. 264.1(1)(a) Criminal Code Official Court Reporters 1 THE COURT: Matthew Menacho pleaded 2 guilty on Tuesday to two counts on an 3 Indictment; the first being, that on or 4 between the 8th and 9th day of June 2012, he 5 committed an assault on Karen Christiansen, 6 his former common-law spouse; and, secondly, 7 that, on the same date, he uttered a threat to 8 cause bodily harm to Karen Christiansen, and I 9 must now sentence him for these offences. 10 The Crown is seeking a sentence of nine to 11 12 months incarceration followed by a period 12 of probation. Mr. Menacho's counsel says that 13 an appropriate sentence is one of time served, 14 which equates to a seven month and five day 15 sentence based upon his remand time. 16 Details of the assault and threats that 17 were uttered by the accused are contained in 18 an agreed statement of facts, Exhibit S-1. 19 Briefly, the accused and Karen 20 Christiansen had been in a relationship for 21 approximately five years at the time of the 22 offences and were living together with their 23 five-year-old son. For the year prior to the 24 offences, the relationship had not been going 25 well; and on June 8th, 2012, the victim was at 26 home sleeping in her bedroom. Her son was 27 also at the residence sleeping in his bedroom. Official Court Reporters 1 1 At approximately 6 a.m., she woke up when 2 she heard the accused coming home. He came 3 into their bedroom. He was intoxicated, 4 verbally abusive, and aggressive. 5 Mr. Menacho accused the victim of cheating 6 on him. He got on the bed and began punching 7 the pillows that were beside the victim's 8 head. She asked him to stop and moved in 9 order to avoid being hit. As she moved, he 10 hit her on the right side of the forehead. 11 The force used was sufficient to bring tears 12 to her eyes and she later had a red mark on 13 her forehead. 14 After work that same day, the victim went 15 home with her son and spent the evening there 16 with him. The accused was not present and he 17 returned to the residence at approximately 18 12:30 in the morning. When he returned, he 19 was very intoxicated. He could not walk, was 20 unsteady on his feet, and was slurring his 21 words. He wanted to have sex with the victim 22 but she did not want to. He persisted in his 23 requests and eventually she consented to 24 having sex with him. 25 After having consensual sex for a period 26 of time, the victim told him that she no 27 longer wanted to have sex and that she needed Official Court Reporters 2 1 a break. The accused wanted to continue. The 2 victim told him that it was enough and she 3 kicked him off of her and he fell on the floor 4 and hit his head. The accused then went back 5 on the bed, behind the victim, he put his arm 6 around her neck in a headlock and began to 7 choke her. The victim was very scared as she 8 could not breathe and began to cough and to 9 try and catch her breath. He then released 10 her and apologized saying he was sorry. The 11 victim did not feel that his apology was 12 genuine. They later went to bed together and 13 the victim waited until the accused fell 14 asleep at which point she got up and left the 15 room. 16 During one of these incidents, the accused 17 told the victim "if I ever catch you with your 18 boyfriend, I will slice your throat. I will 19 get him". 20 I am told that the accused and the victim 21 are no longer together. 22 The Crown has filed as Exhibit S-2 a 23 handwritten note completed by Ms. Christiansen 24 yesterday. In it, she discusses how she has 25 had to take on increased responsibilities in 26 parenting their child, that the accused and 27 she have together, and that this has been Official Court Reporters 3 1 stressful for her. The accused has been in 2 custody for some time and so she has had to 3 act as a single parent for many months now. 4 She referred to that in the note. 5 Mr. Menacho's criminal record has been 6 filed as an exhibit, S-3. There are 13 7 convictions on his criminal record. His 8 criminal record begins in 2001 and continues 9 through to earlier this year, in March 2013. 10 The most significant convictions on his 11 criminal record are those that relate to prior 12 offences of violence against a spouse. 13 In 2003, the accused was convicted of 14 three offences: 15 Using a firearm during the commission of 16 an offence for which he received a sentence of 17 12 months incarceration; 18 Assault, for which he received a suspended 19 sentence and two years of probation;. 20 And, possession of a firearm or ammunition 21 contrary to a prohibition order for which he 22 received a sentence of one month imprisonment 23 consecutive. I am advised that that assault 24 was on a spouse although it was not the same 25 victim as the offences before the Court today. 26 Based upon the convictions that were entered, 27 the assault involved the use of a firearm in Official Court Reporters 4 1 the incident and it was significant enough to 2 warrant a 13 month period of imprisonment, and 3 the accused was also subjected to a firearm 4 prohibition order. 5 Following those convictions, there is a 6 gap in the accused's criminal record until 7 2007. At that point, there is an entry for an 8 impaired driving offence for which he received 9 a fine. There is then another gap in the 10 accused's criminal record until 2011. 11 On July 7th, 2011, the accused was 12 convicted of an assault and for the offence of 13 failing to comply with an undertaking. He 14 received a sentence of 45 days for the assault 15 and 15 days imprisonment concurrent on the 16 failing to comply with an undertaking. 17 The assault was a spousal assault and the 18 victim in that assault was the same victim as 19 the offences before the Court today. 20 The next convictions on the accused's 21 criminal record are from March 7th, 2013. He 22 was convicted of four counts of failing to 23 comply with a condition of his undertaking. 24 He received a global sentence of 90 days 25 imprisonment. He was credited with 55 days of 26 time served for his remand time. 27 Mr. Menacho has been in custody on these Official Court Reporters 5 1 charges since his arrested around January 11, 2 2013. He was initially released on an 3 undertaking but was arrested around January 4 11th, 2013 and charged with four breaches that 5 he was sentenced for on March 7th, 2013. On 6 that same date, he was also committed to stand 7 trial on these offences after a preliminary 8 inquiry. 9 His sentence for the four breaches would 10 have expired on March 30th, 2013. So his 11 remand time for these offences begins on that 12 date and, to today's date, that is seven 13 months and six days. 14 Pursuant to Section 719(3.1) of the 15 Criminal Code, the maximum credit available 16 for this remand time is one and a half days 17 for each day spent in custody unless the 18 reason for detaining the person in custody was 19 stated on the record under Section 515(9.1), 20 or the person was detained pursuant to 21 Section 524(4) or subsection (8). 22 As the accused's release would have been 23 cancelled when he was detained on the 24 breaches, Section 524(8) is applicable. 25 Mr. Menacho's counsel acknowledged that his 26 remand time is limited to one day for each day 27 in custody pursuant to Section 719(3). Official Court Reporters 6 1 Mr. Menacho is of aboriginal descent and 2 this requires me to consider Section 718.2(e) 3 of the Criminal Code which states: 4 All available sanctions, other 5 than imprisonment, that are 6 reasonable in the circumstances 7 should be considered for all 8 offenders, with particular 9 attention to the circumstances of 10 aboriginal offenders. 11 The Supreme Court of Canada in the cases 12 of Gladue and Ipeelee have considered that 13 section, and I have considered the principles 14 set out in those cases and the requirement 15 under the Criminal Code to consider the unique 16 systemic or background factors which may have 17 played a part in bringing an aboriginal 18 offender before the courts and the types of 19 sentencing procedures and sanctions which may 20 be appropriate in the circumstances because of 21 the offender's background. 22 I have heard that Mr. Menacho is 32 years 23 old. He was born in Inuvik and has lived in 24 Tulita most of his life. He attended school 25 up to Grade 11, and he has been employed 26 recently, prior to his detention on these 27 charges, and he is hoping to secure employment Official Court Reporters 7 1 upon his release. Based upon what I have 2 heard from counsel about his job 3 opportunities, that seems that that may be a 4 likely scenario. 5 With respect to Mr. Menacho's childhood, 6 he was adopted to his grandparents as a child. 7 His father attended residential school and had 8 a lot of problems as a result. His mother 9 also attended residential school for two 10 years. The relationship between his mother 11 and his father was an abusive one and his 12 mother eventually left his father as a result 13 of the abuse. He also says that his mother 14 drank alcohol when she was pregnant with him 15 and that while he was growing up alcohol was 16 prevalent, it was always around, and that the 17 accused suffered as a result of the abuse of 18 alcohol by those around him. 19 The accused himself has had issues with 20 alcohol and, upon his release, says his 21 intention is to attend the Poundmaker's 22 treatment program in Alberta. 23 The accused has had a relationship with 24 Ms. Christiansen for five years which is now 25 over. They do have a five-year-old son 26 together which the accused hopes to 27 participate in raising him. Official Court Reporters 8 1 He has many relatives in Tulita. He has 2 been staying recently with his mother and 3 assisting his grandmother who has a number of 4 health issues. He helps her with getting 5 wood, cleaning, and doing other chores. 6 In terms of traditional activity, the 7 accused has participated in them. He teaches 8 jigging and is involved in hand games. He 9 also likes to go on the land to hunt. 10 He has taken programs in the past to 11 address some of his problems, most recently 12 while on remand has attended AA once in a 13 while and a program put on by the Healing Drum 14 Society which is called Embracing our 15 Human-Nest program. 16 Reportedly, he has been an ideal inmate 17 who would have received remission if he were a 18 serving prisoner. He spoke eloquently 19 yesterday about his plans and his remorse for 20 the offences. 21 So despite the background of Mr. Menacho, 22 which has had hardship, violence and abuse of 23 alcohol, it seems that there is a lot to be 24 said for him. He has got a lot in his future 25 and he has a lot of potential which hopefully 26 he will be able to live up to. 27 There are a number of sentencing Official Court Reporters 9 1 principles that are engaged in this case. The 2 purposes and principles of sentencing are set 3 out in the Criminal Code. I do not intend to 4 refer to all of them but I have considered 5 them. 6 The fundamental purpose and principle of 7 sentencing is that a sentence must be 8 proportionate to the gravity of the offence 9 and the degree of responsibility of the 10 offender. 11 Domestic violence is a problem that has 12 been around for many years. It is one that 13 has been recognized by the courts for many 14 years and courts have frequently spoken about 15 the need to emphasize certain sentencing 16 principles in order to reduce the prevalence 17 of domestic violence in our society. Despite 18 this, cases continue to come before this Court 19 and the Territorial Court on a daily basis. 20 Recently, this Court has commented on 21 domestic violence in the cases of Weninger, 22 McLeod and Inuktalik. Weninger and Inuktalik 23 referred to the Alberta Court of Appeal case 24 of Brown, Highway and Umperville which 25 established that the paramount sentencing 26 principles in cases of domestic violence are 27 general deterrence and denunciation. Official Court Reporters 10 1 At page 7 of Brown, the Court of Appeal 2 stated: 3 The more important principles are 4 that the sentence should be such 5 as to deter other men from 6 similarly conducting themselves 7 toward women who are their wives 8 or partners,(what is called the 9 principle of "general 10 deterrence"), and that the 11 sentence should express the 12 community's wish to repudiate such 13 conduct in a society that values 14 the dignity of the individual (the 15 "denunciation principle") 16 Despite the passage of time since Brown, 17 (over 20 years) as I stated in Inuktalik: 18 Courts remain limited in our 19 ability to solve the problem of 20 domestic violence. It continues 21 to be a broad social problem which 22 needs to be addressed by society, 23 by government, by communities, by 24 individual citizens. When the 25 Courts get involved, the assault 26 and domestic violence has already 27 occurred. We are dealing with the Official Court Reporters 11 1 often messy aftermath. As such, 2 our role remains as it has been - 3 to use sentencing policy to 4 denounce domestic violence in 5 clear terms and to deter the 6 offender and other persons from 7 committing acts of domestic 8 violence. 9 Section 718.2(a)(i) and (ii) of the 10 Criminal Code makes it statutorily aggravating 11 that the offender, in committing an offence, 12 abused their spouse or common-law partner. 13 This recognized what the courts have already 14 viewed as being aggravating - the abuse of a 15 spouse. 16 In the case of Weninger, Justice 17 Charbonneau stated, at page 24: 18 The sentencing principles of 19 general deterrence and 20 denunciation require looking 21 beyond the one case that the Court 22 is dealing with. The Court has to 23 be concerned about the message 24 that this sentence sends to the 25 public. It is not about making 26 examples of people. It is not 27 about succumbing to political or Official Court Reporters 12 1 other pressures. It not about 2 being unduly harsh. But it is 3 about ensuring that the sentence 4 imposed for crime reflect the 5 seriousness of the crime, the 6 importance of discouraging others 7 from behaving in a similar way, 8 and that those sentences reflect 9 society's condemnation of the 10 conduct. 11 I have reviewed the cases filed by the 12 Crown and the defence. The Crown filed the 13 cases of McLeod, Sanderson, Mantla and 14 Weninger. The defence filed the cases of 15 Gordon and Hope and also, in submissions, 16 referred to the Northwest Territories Court of 17 Appeal decision of Grossette. I was unable to 18 access the decision of Grossette but have 19 considered what I was told by counsel about 20 the circumstances of that case. 21 I am not going to go through each case but 22 I would note that each case has both 23 similarities and differences to this case. 24 Some of the cases, like Mantla, are more 25 similar to this case whereas some of the 26 cases, like Hope, have perhaps more 27 differences than similarities. However, the Official Court Reporters 13 1 causes are useful with respect to the 2 sentencing principles that are applicable and 3 establishing a range of sentences that have 4 been imposed in other cases of violence and 5 domestic violence. 6 Turning to the factors that are applicable 7 in this case, Mr. Menacho has entered guilty 8 pleas. The guilty pleas occurred after a 9 preliminary inquiry in which the victim was 10 required to testify. Mr. Menacho was then 11 charged on an Indictment with first four 12 counts and then a subsequent Indictment was 13 filed with three counts - the two counts of 14 assault and uttering threats that he has pled 15 guilty to and one count of sexual assault on 16 which the Crown has directed a stay. 17 The guilty pleas to the assault and 18 uttering threats were entered yesterday just 19 as the trial was about to begin. On Monday 20 afternoon, a jury had been selected and we had 21 adjourned to begin the trial on Tuesday. So 22 the guilty pleas cannot be considered early 23 guilty pleas because of the timing, but the 24 accused is no longer facing the most serious 25 charge - the sexual assault. As a result of 26 new information, the Crown approached the 27 defence on Monday evening with respect to a Official Court Reporters 14 1 plea to the assault and utter threats. And I 2 am advised by defence that this resolution had 3 been something that had been put forward by 4 Mr. Menacho previously and that he had, on a 5 couple of occasions, proposed this and had 6 been willing to plead to these offences 7 earlier. 8 So this is a situation in the end where 9 there has been a preliminary inquiry, where 10 the victim has had to testify, and a guilty 11 plea came after jury selection. But the most 12 serious charge on the Indictment has been 13 stayed and the accused had been willing to 14 plead to the assault and uttering threats for 15 some time. In the circumstances, the accused 16 should receive credit for his guilty plea. 17 As well, it is mitigating that the accused 18 has expressed remorse for these offences 19 through his willingness to plead guilty to the 20 assault and uttering threats and with his 21 apology to the victim yesterday. 22 There are also a number of aggravating 23 factors in these offences. 24 The assault was on a spouse or common-law 25 partner, and I have already referred to the 26 principles which are applicable in that 27 situation. In this case, the accused and the Official Court Reporters 15 1 victim were in a long term relationship. The 2 relationship had not been going well for some 3 time but they were still living together with 4 their son. 5 The assault committed by Mr. Menacho 6 consisted of a punch to the head on the first 7 occasion and choking on the following day. 8 While not the most serious of assaults, the 9 victim must have been scared particularly 10 during the choking incident. Choking someone 11 is a particularly aggravating circumstance. 12 It is an inherently dangerous activity. 13 Someone can lose consciousness within seconds. 14 The accused is fortunate that the victim did 15 not suffer any lasting injuries. 16 And to add to the violence that the victim 17 was subjected to, there was also the threat 18 that was made that the accused would slice her 19 throat. 20 Both offences were committed while the 21 victim and the accused's five-year-old son 22 were present at the residence. The son did 23 not witness the assaults or uttering threats, 24 but it is aggravating that a child was 25 present. 26 Both of the offences were also committed 27 while Mr. Menacho was under the influence of Official Court Reporters 16 1 alcohol. The facts of each offence detail 2 that the accused was intoxicated when he 3 assaulted the victim the evening of June 8th 4 and the following day when he assaulted her 5 and choked her. And when he also threatened 6 her. 7 Mr. Menacho has not used his intoxication 8 as an excuse for his actions. He has attended 9 AA and says that he wants to continue 10 treatment so clearly he recognizes that 11 alcohol is a problem for him. This is evident 12 from the agreed statement of facts and from 13 the other offences on his criminal record. 14 Turning to the accused's criminal record, 15 as I mentioned this is now the third offence 16 of violence that the accused has been 17 convicted of. All three assaults have been 18 spousal assaults; the two most recent on the 19 same victim. The 2011 and the 2012 ones are 20 on Ms. Christiansen. So the criminal record 21 itself is aggravating and that this is the 22 second conviction for an offence against 23 Ms. Christiansen is also aggravating. 24 Taking into account the circumstances of 25 the offence and of the offender, the sentence 26 must meet the sentencing principles that I 27 have referred to. It is important as well in Official Court Reporters 17 1 sentencing someone, who has demonstrated a 2 pattern of assaulting a spouse or a partner, 3 ensuring that the sentencing principles, the 4 paramount sentencing principles do not become 5 lost. It is important to ensure that they are 6 met. Offenders who repeatedly commit offences 7 of domestic violence, particularly in 8 situations where it is the same victim, have 9 demonstrated that previous sentences, which 10 were intended to denounce conduct and to deter 11 the offender and generally deter other persons 12 who might contemplate committing an offence of 13 domestic violence, have not worked. In these 14 situations, courts should not defer or give up 15 or essentially say that there is nothing that 16 can be done but it should instead ensure that 17 the paramount sentencing principles continue 18 to be emphasized in sentencing an offender 19 convicted of domestic violence. 20 Please stand, Mr. Menacho. 21 Taking into account the circumstances and 22 the applicable sentencing principles, I 23 sentence you to nine months imprisonment for 24 the assault contained in Count 1 of the 25 Indictment. 26 I also sentence you to three months 27 imprisonment for the utter threats contained Official Court Reporters 18 1 in Count 3 of the Indictment. That will be 2 served concurrently. 3 I have taken into account the seven months 4 and five days of pre-trial custody on a one 5 for one basis. That leaves a sentence of 6 roughly two months minus five days. 7 To provide some clarity, using an average 8 of 30 days to a month, that will be two months 9 of 30 days each, so 60 days, minus five days, 10 leaving you a sentence of 55 days 11 imprisonment. 12 There will also be a period of probation 13 of six months. I am cognizant of the fact 14 that you have not done well recently while on 15 release but I also think it is important to 16 provide some protection for the victim and to 17 provide you with some assistance in dealing 18 with your issues with alcohol. 19 So the probation order will have the 20 statutory conditions. Those are required by 21 the Criminal Code, and they are you will keep 22 the peace and be of good behavior, appear 23 before the Court when required to do so by the 24 Court; and notify the Court or your probation 25 officer in advance of any change in name or 26 address; and promptly notify the Court or 27 probation of any change in employment or Official Court Reporters 19 1 occupation. 2 There will also be optional conditions. 3 You are to have no contact with Karen 4 Christiansen unless she consents and you are 5 not under the influence of alcohol. You will 6 report to your probation officer within two 7 days of your release and thereafter as 8 directed. And you will take any counselling 9 recommended by your probation officer. 10 You may sit down. 11 Do you understand those conditions? 12 THE ACCUSED: Yes. 13 THE CLERK: I didn't get when he was to 14 report to the probation officer. 15 THE COURT: Within two days of his 16 release. 17 There were some other orders that have 18 been requested by the Crown. 19 The Crown is also seeking a firearm 20 prohibition order pursuant to Section 110 of 21 the Criminal Code. The accused does have a 22 history involving firearms; as well, his first 23 spousal conviction involved the use of a 24 firearm, so that is a concern. However, that 25 is the extent of his offences involving 26 firearms and this assault did not involve the 27 use of a firearm or a weapon. So in the Official Court Reporters 20 1 circumstances I am not satisfied that a 2 firearm prohibition order is necessary. 3 The assault is a secondary designated 4 offence and there will be a DNA order. 5 And also, I am required to impose a victim 6 of crime surcharge on each count. 7 Is there anything else, counsel? 8 MS. PAQUIN: Your Honour, the Crown 9 suggested an additional condition - not to 10 attend the residence of Karen Christiansen and 11 her place of work unless she consents. And 12 that the accused is sober. I don't know if 13 the Court turned its mind to it. 14 THE COURT: Mr. Martin? 15 MR. MARTIN: If I might have a moment, 16 Your Honour. 17 THE COURT: Yes. 18 MR. MARTIN: Your Honour, my client has 19 expressed some concern in that he does some 20 teaching at the school where Ms. Christiansen 21 would teach. So if it would be -- if that 22 could be accommodated, he has asked me to note 23 that. 24 THE COURT: My concern with imposing 25 probation was to ensure that the conditions 26 were something that was not going to be too 27 onerous on Mr. Menacho given his history. But Official Court Reporters 21 1 it does make sense to have -- because of my 2 concern about contact with the victim, to have 3 a limitation. 4 I am going to have that he is not to 5 attend her residence unless she consents and 6 he is not under the influence of alcohol. 7 Because of the concern about teaching, it 8 is at the school? 9 MR. MARTIN: Yes, he does teach dancing 10 and jigging at the school as I understand. 11 THE COURT: That is a public place and I 12 imagine there are times when he attends at the 13 school and I don't want to be in the situation 14 where it can restrict his access to the school 15 so it will not include her place of 16 employment. 17 THE CLERK: There is a time to pay for 18 the victim of crime surcharge. 19 THE COURT: The victim of crime 20 surcharge, there are recent changes. I 21 believe it is $200 now per count for 22 indictable matters. So, Mr. Martin, do you 23 have any submissions on time to pay? 24 MR. MARTIN: Since he will be in custody 25 for, it appears an additional up to 55 days, I 26 would ask for two months pursuant to his 27 release, Your Honour. Official Court Reporters 22 1 THE COURT: Following his release? Do 2 you have any submissions? 3 MS. PAQUIN: No, thank you. 4 THE COURT: So that is fine, two months 5 following his release. 6 Is there anything else, counsel? 7 MR. MARTIN: Nothing from the defence, 8 thank you. 9 MS. PAQUIN: Nothing from the Crown. 10 THE COURT: Thank you, counsel, for your 11 work on this matter and your attempts to 12 resolve this matter, eliminating the need for 13 a trial, so thank you. We will close court. 14 (ADJOURNED) 15 16 ------------------------------------- 17 18 Certified to be a true and accurate transcript pursuant 19 to Rules 723 and 724 of the Supreme Court Rules, 20 21 22 23 24 ____________________________ 25 Lois Hewitt, Court Reporter 26 27 Official Court Reporters 23
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