Supreme Court

R. v. Vaneltsi, 2014 NWTSC 6




CR-S-1-2012-000130




IN THE SUPREME COURT OF THE NORTHWEST TERRITORIES IN THE MATTER OF:


HER MAJESTY THE QUEEN



- vs. -



BENJAMIN WILLIAM VANELTSI

_________________________________________________



Transcript of the Sentencing by The Honourable

Madam Justice S. Smallwood, at Inuvik in the Northwest

Territories, on 5th June A.D., 2013.

_________________________________________________ APPEARANCES:
Ms. W. Miller:	Counsel for the Crown

S. Petitpas, Esq.:	Counsel for the Accused

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Charge under s. 348(1)(B) Criminal Code of Canada








A.C.E. Reporting Services Inc.

1	Proceedings taken at Sentencing, in the Supreme Court

2	of the Northwest Territories, at Inuvik, Northwest

3	Territories.

4	-----------------------------------------------------

5	5th June, 2013

6	The Honourable Madam	of the Supreme Court of

7	Justice S. Smallwood	the Northwest Territories

8	Ms. W. Miller	For the Crown

9	S. Petitpas, Esq.	For the Accused

10	D. Sirman, CSR(A)	A.C.E. Reporting Services Inc.

11	-----------------------------------------------------

12	MS. MILLER:	Good morning, Your Honour.

13	THE COURT:	Good morning, Ms. Miller.

14	MS. MILLER:	We have Mr. Vaneltsi here.

15	I'm not sure if Your Honour is prepared to begin

16	with the decision.	We're in the Court's hands.

17	THE COURT:	Yes.	Yes.	We can begin

18	with Mr. Vaneltsi's decision and I think we will

19	take a brief adjournment and then continue with

20	the trial of Mr. Neyando.

21	Yesterday Benjamin William Vaneltsi pleaded

22	guilty to one count of breaking and entering and

23	committing the indictable offence of mischief

24	over $5000 contrary to section 348(1)(b) of the

25	Criminal Code.	This morning it is my task to

26	sentence him for this offence.	The facts of the

27	offence are as detailed in the Agreed Statement

1	of Facts filed yesterday which I will briefly

2	summarize.

3	On two occasions the Accused broke into the

4	John Tetlichi Building in Fort MacPherson and

5	caused significant damage to the offices of Mary

6	Ruth Wilson and Hazel Nerysoo.	On April 29, 2012

7	the R.C.M.P. in Fort MacPherson received a report

8	of a break-in at the John Tetlichi Building, a

9	building which houses offices of the Government

10	of the Northwest Territories.	There was

11	extensive damage as depicted in the photographs

12	Exhibit S-3.	The office of Mary Ruth Wilson was

13	damaged and the total cost of the damage was

14	$4,320.	The office of Hazel Nerysoo was also

15	damaged and the cost of damage for her office was

16	$1575.	Blood was located at the scene and sent

17	away for analysis.	No one was arrested at that

18	time.

19	On August 8, 2012 another break-in was

20	reported at the John Tetlichi Building.	Two

21	offices were broken into, and again they were

22	those of Mary Ruth Wilson and Hazel Nerysoo.	The

23	photographs again depict the damage which was

24	extensive.	The total cost of the damages to both

25	offices was $12,262.69.

26	Muddy footprints were observed at the scene.

27	The offender had been arrested and lodged in

1	R.C.M.P. cells because of another incident, and

2	at that time it was observed that the tread

3	pattern on his shoes appeared to match that of

4	the footprints that were in the building.

5	Later the blood submitted from the first

6	incident was determined to match the offender's

7	DNA profile which had been placed on the DNA data

8	bank.	He subsequently gave a warned statement

9	admitting to both break-ins and saying that he

10	had done so because Hazel Nerysoo and Mary Ruth

11	Wilson made fun of him and he heard that they did

12	not like him.	He had had no way of getting at

13	them so he broke into their office and smashed

14	things.

15	On sentence the Crown is seeking a sentence

16	of 12 months imprisonment to be followed by

17	12 months of probation.	The Defence is however

18	suggesting that a conditional sentence of

19	imprisonment would be appropriate in the

20	circumstances and is requesting that a 15- to

21	18-month conditional sentence be imposed followed

22	by 12 months of probation.

23	There are a number of factors to consider in

24	crafting an appropriate sentence in this case.

25	In mitigation the offender has entered a guilty

26	plea and has done so at an early opportunity.

27	Notwithstanding that the offence occurred

1	starting in April of 2012, Mr. Vaneltsi at his

2	first appearance in November 2012 elected Supreme

3	Court Judge alone and did not request a

4	Preliminary Inquiry.	Shortly after this the

5	following week counsel for Mr. Vaneltsi advised

6	the court that he wished to set this matter down

7	for disposition.	So no witnesses have been

8	required to testify at any stage in this

9	proceeding.	So the offender is entitled to the

10	full credit for an early guilty plea.

11	There are aggravating factors as well.	The

12	amount of damage caused by the offender was

13	significant.	Over $18,000 in damages over both

14	incidents.	This offence involved two incidents

15	separated by several months so this was not just

16	a one-time thing.	The Accused Mr. Vaneltsi has

17	readily admitted his motive.	His counsel

18	characterized the offender's actions as being in

19	response to the bullying of Ms. Wilson and

20	Ms. Nerysoo.	The offender in providing a

21	statement to the police and in addressing the

22	court yesterday admitted that he damaged the

23	offices on two occasions for how the two ladies

24	had treated him.	In his statement to the police

25	he stated that they did not like him and they

26	made fun of him.	It's not clear to what extent

27	this occurred, but if it did then I sympathize

1	with the offender, but his response, his actions,

2	were wrong.	This is not how you respond to

3	people who you believe are mistreating you.	The

4	offender's actions affected not just Ms. Wilson

5	and Ms. Nerysoo but must have gone farther and

6	had an impact on other people who work in the

7	building, and I say that because of the

8	photographs which show the damage which was

9	extensive, and also because this is a building

10	with government offices and it likely would have

11	had an impact on members of the community who had

12	to access those offices.

13	The offender also has a criminal record

14	which is a fairly significant one.	He has 37

15	convictions starting in 1993 and continuing up to

16	2009.	There are a variety of offences on his

17	criminal record including offences against the

18	administration of justice, property offences,

19	driving offences and offences of violence.

20	In considering whether a conditional

21	sentence should be imposed the court is required

22	to consider four factors pursuant to

23	section 742.1 of the Criminal Code.	Counsel

24	agree that the amendments which came into force

25	in November 2012 were not retroactive in their

26	effect and I agree.	So the factors are that

27	Mr. Vaneltsi must be convicted of an offence

1	which is not punishable by a minimum term of

2	imprisonment and otherwise complies with

3	section 742.1; the court must be considering a

4	sentence of less than two years imprisonment;

5	service of a sentence in the community would not

6	endanger the community and also would be

7	consistent with the fundamental purpose and

8	principles of sentencing as detailed in sections

9	718 to 718.2 of the Criminal Code.

10	The first two factors are met in this case.

11	This is an offence which qualifies and for which

12	there is no minimum term of imprisonment, and the

13	Crown is not seeking and the court is not

14	considering a sentence of more than two years.

15	In considering whether serving a sentence in the

16	community would endanger the community the court

17	must consider the threat posed by the specific

18	offender and not the broader risk of undermining

19	respect for the law.	It includes a consideration

20	of the risk of any criminal activity including

21	property offences and whether there is a risk

22	that the offender will re-offend and the gravity

23	of the damage that could ensue.

24	The offender in this case is 41 years old.

25	He is single, born in Inuvik, and resides in

26	Fort MacPherson with his sister.	He is the

27	youngest of seven siblings.	His sister who is

1	the oldest is willing to have Mr. Vaneltsi

2	continue to reside with her while serving a

3	conditional sentence.

4	The offender's criminal history which I have

5	briefly referred to above must be considered in

6	determining whether a conditional sentence would

7	endanger the community.	Mr. Vaneltsi's criminal

8	history goes back 20 years.	He has five

9	convictions for property offences on his criminal

10	record.	In 1999 a conviction for attempt to

11	break and enter with intent for which he received

12	a sentence of 30 days.	A mischief conviction in

13	1999 as well for which he received 15 days

14	consecutive to other sentences he was serving.

15	A break and enter with intent and an unlawfully

16	in a dwelling house in 2004 for which he received

17	eight months and two months respectively.	A take

18	motor vehicle without consent in 2008 for which

19	he received a suspended sentence and probation

20	for 12 months.	He has 17 convictions for

21	offences against the administration of justice

22	going back to 1993 and continuing up to 2009.

23	The offences include failing to comply with a

24	recognizance, driving while disqualified, failing

25	to appear and multiple convictions for failing to

26	comply with an undertaking and failing to comply

27	with a probation order.

1	The accused's history of complying with

2	court orders is also a concern.	On November 24,

3	1994 Mr. Vaneltsi was sentenced for careless

4	storage and an assault and received a suspended

5	sentence and one year probation.	On May 11, 1995

6	he was sentenced for an assault causing bodily

7	harm and failing to comply with a recognizance.

8	At that time he would have been on that probation

9	order although there has been no conviction for

10	failing to comply with probation.	While the date

11	of the assault and failing to comply with the

12	recognizance are unknown there is a possibility

13	that he committed those offences while on

14	release.

15	Giving Mr. Vaneltsi the benefit of the doubt

16	I cannot conclude that he failed to comply with

17	that first probation order.	However, the next

18	order that he was on, which was imposed by the

19	court, he was placed on a driving prohibition on

20	November 20, 1996 for three months.	On April 10,

21	1997 he was convicted of driving while

22	disqualified.	Mr. Vaneltsi was subsequently

23	placed on two further driving prohibitions which

24	he apparently complied with.	The next order that

25	he was placed on pursuant to a sentencing was a

26	probation order on August 8, 2008 when he

27	received a 12-month probation order.	On May 13,

1	2009 he was convicted of five failing to comply

2	with probation order offences for breaches which

3	occurred on March 17, 2009, March 21, 2009 and

4	April 29, 2009.

5	Interspersed on his criminal record are also

6	a number of convictions for failing to comply

7	with conditions of release in 1995, 1999, 2000,

8	2004 and 2008.	Based on his history of

9	compliance and committing substantive offences I

10	have some concerns about Mr. Vaneltsi's ability

11	to comply with conditions that might be imposed

12	on a conditional sentence.

13	I must also consider whether a conditional

14	sentence would be consistent with the fundamental

15	purpose and principles of sentencing.	In the

16	case of Nitsiza, which was provided by the Crown

17	yesterday, that case has some similarities and

18	some differences with the case before me today.

19	Each case and each offender must be considered on

20	their own individual circumstances, but that case

21	is useful in that it demonstrates that the

22	sentencing principles that the court can consider

23	as important are deterrence as well as

24	rehabilitation.

25	Considering the circumstances of the offence

26	and the offender's personal circumstances I

27	believe that deterrence is important in this

1	case, both specific and general.	Specific

2	deterrence is required to send a message to

3	Mr. Vaneltsi that he cannot deal with his

4	problems with people in this manner.	While he

5	did not deal with his problems with these two

6	women in a physical manner his actions are still

7	serious.	He caused significant damage to their

8	offices on two occasions.

9	General deterrence is also required to send

10	a message to the community and members of the

11	public that this type of behaviour, the flagrant

12	destruction of offices on two occasions, will not

13	be tolerated by the courts.

14	Rehabilitation is another principle that I

15	must consider.	While I have not heard much about

16	the offender's prospects for rehabilitation I

17	cannot conclude that his prospects are small or

18	that there is no point in considering

19	rehabilitation.	The gaps in his record over the

20	past few years demonstrate that the offender has

21	the ability to refrain from committing offences.

22	So he has the ability to manage the issues

23	whether it's alcohol or anger management to an

24	extent; but obviously given the last conviction

25	that I am dealing with today that is still an

26	issue, and there is still a concern with his

27	ability to do so over the long term.

1	Reparations for harm done to victims and the

2	community is another sentencing principle in the

3	Criminal Code.	The amount of damage done in this

4	case was significant and the impact upon the

5	victims and the community is something that I

6	cannot ignore.	I have addressed it earlier so I

7	will simply say having looked at the photographs

8	of the damage I can easily see how $18,000 in

9	damage was done, and that it must have had an

10	impact on the victims as well as members of the

11	public who frequent the building.

12	A sentence must also be proportionate to the

13	gravity of the offence and the degree of

14	responsibility of the offender.	As I mentioned

15	while I suppose we can be thankful that

16	Mr. Vaneltsi chose not to physically assault

17	these two women that he had the issues with the

18	damage caused was intentional, significant and

19	occurred on two occasions with several months

20	in-between.	So there is a high degree of

21	responsibility with respect to Mr. Vaneltsi's

22	actions.

23	I must also pursuant to the Gladue and

24	Ipeelee decisions of the Supreme Court of Canada

25	consider the aboriginal background of the

26	offender and whether sanctions other than

27	imprisonment should be considered.	In addition

1	to what I have already referred to I have heard

2	that the offender is unemployed and has a Grade 7

3	education.	He is of Gwitch'in descent and

4	participates in traditional activities like

5	trapping.	His father attended residential school

6	and his parents struggled with alcohol while he

7	was growing up.	The offender himself started

8	drinking at a young age and struggles with

9	alcohol.	According to his counsel most of the

10	offences on his criminal record have involved

11	alcohol, and what I have heard about Mr. Vaneltsi

12	sadly is not unusual.	The courts in the

13	Northwest Territories are burdened with offenders

14	of aboriginal descent who have either attended

15	residential school or have had a parent who

16	attended residential school.	The abuse of

17	alcohol frequently predominates their background

18	either through abuse by their parents of alcohol

19	or the offender's ongoing struggles with it or

20	both; and I do not know that I have the answer or

21	that we can solve these problems, but courts

22	struggle to craft appropriate sentences for

23	aboriginal offenders while attempting to respect

24	the other sentencing principles.

25	Considering all of these circumstances I am

26	not satisfied that the offender serving a

27	sentence in the community meets the last two

1	principles required under section 742.1, that of

2	endangering the community and meeting the

3	fundamental purpose and principles of sentencing.

4	Based on the circumstances of the offence and of

5	the offender I believe that a sentence of

6	incarceration is appropriate.

7	Stand up, Mr. Vaneltsi.	For the offence of

8	breaking and entering and committing the offence

9	of mischief over $5000 I sentence you to

10	ten months of imprisonment.	It will be followed

11	by a probation order of nine months which will

12	have the following conditions:	It will have the

13	statutory conditions which are that you are to

14	keep the peace and be of good behaviour; appear

15	before the court when required to do so by the

16	court; and to notify the court or the probation

17	officer in advance of any change of name or

18	address and promptly notify the court or the

19	probation officer of any change of employment or

20	occupation.

21	In addition, there will be optional

22	conditions that you report to your probation

23	officer within three working days of your release

24	from custody and thereafter as directed.	You are

25	to take counselling as directed by your probation

26	officer.	You are to have no contact with Hazel

27	Nerysoo or Mary Ruth Wilson and you are not to go

1	to their residence or place of work wherever that

2	may be.	You are not to attend the John Tetlichi

3	Building in Fort MacPherson without the written

4	permission of your probation officer.	You are

5	not to consume or possess alcohol or

6	nonprescription drugs.

7	Do you understand these conditions?

8	THE ACCUSED:	Yeah.

9	THE COURT:	There will also be a stand

10	alone Restitution Order for $18,157.69 payable to

11	the Government of the Northwest Territories.	The

12	victim of crime surcharge will be waived given

13	the hardship that it would impose on

14	Mr. Vaneltsi.	You can sit down now,

15	Mr. Vaneltsi.

16	Is there anything else, Counsel, that we

17	need to deal with?

18	MS. MILLER:	No.	Thank you, Your

19	Honour.

20	MR. PETITPAS:	Nothing further.	Thank

21	you.

22	THE COURT:	Thank you.	All right.	So

23	that is Mr. Vaneltsi's matter.

24	_____________________________________________________

25	PROCEEDINGS CONCLUDED

26	_____________________________________________________

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1	CERTIFICATE OF TRANSCRIPT

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5	I, the undersigned, hereby certify that the

6	foregoing pages are a complete and accurate

7	transcript of the proceedings taken down by me in

8	shorthand and transcribed from my shorthand notes to

9	the best of my skill and ability.

10	Dated at the City of Edmonton,

11	Province of Alberta, this 28th day of January, 2014.

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18	D. Sirman, CSR(A)

19	A.C.E. Reporting Services Inc.

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