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Abstract: Transcript of the Reasons for Sentence
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R. V. Jerome, 2013 NWTSC 34 S-1-CR-2012-000045 IN THE SUPREME COURT OF THE NORTHWEST TERRITORIES IN THE MATTER OF: HER MAJESTY THE QUEEN - v - DAKOTA JEROME _________________________________________________________ Transcript of the Reasons for Sentence by The Honourable Justice K. Shaner, at Yellowknife in the Northwest Territories, on the 5th day of June, 2013. _________________________________________________________ APPEARANCES: Mr. M. Johnson: Counsel for the Crown Mr. P. Fuglsang: Counsel for the Accused ---------------------------------------- Charge under s. 344(1)(b) Criminal Code of Canada Official Court Reporters 1 Proceedings taken in the Supreme Court of 2 Yellowknife, Northwest Territories 3 ----------------------------------------------------- 4 THE COURT: Good afternoon. 5 MR. FUGLSANG: Good afternoon, Your Honour. 6 THE COURT: Mr. Fuglsang, do you wish to 7 have Mr. Jerome sit with you? 8 MR. FUGLSANG: I think that would be good, 9 Your Honour. 10 THE COURT: Do you have any concerns, 11 officer? 12 SHERIFF: No, Your Honour. 13 THE COURT: All right. 14 MR. FUGLSANG: Thank you. 15 THE COURT: And I am prepared to give 16 sentence and reasons for sentence. Is there 17 anything before I begin? 18 MR. JOHNSON: Not from the Crown, Your 19 Honour. 20 THE COURT: Okay. Mr. Fuglsang? 21 MR. FUGLSANG: Nothing, Your Honour. 22 THE COURT: And as well, just as a 23 preliminary point, I would like to thank all of 24 you, counsel, and you, Mr. Jerome, and you, 25 officer, for being able to accommodate this 26 change of date from Friday to today. The court 27 appreciates it very much. 1 With that, I will just give you my decision 2 on sentence. 3 On June 3rd, 2013, Monday, Mr. Jerome 4 pleaded guilty to a charge that he stole a bank 5 card, business cards and a jacket from Tony 6 Bernhardt, and at the time, he wounded 7 Mr. Bernhardt contrary to section 344(1)(b) of 8 the Criminal Code. 9 The circumstances of that offence were read 10 into the court record by way of a statement of 11 agreed facts. In summary, however, on the 12 evening of January 24th, 2012, Mr. Bernhardt, who 13 was then 48 years old, went to visit a friend at 14 an apartment. Mr. Jerome and some others were 15 visiting there as well. Mr. Jerome was on 16 probation at the time, and of course, was 17 required to keep the peace and be of good 18 behaviour. 19 Mr. Bernhardt was familiar to Mr. Jerome. 20 Mr. Jerome and another man, Aron Kay, were 21 intoxicated from drinking alcohol. At some 22 point, Mr. Kay told Mr. Bernhardt that the latter 23 owed him money. Mr. Bernhardt, the victim, 24 denied this. 25 Mr. Bernhardt wound up in the washroom with 26 Mr. Kay and Mr. Jerome. It's not clear who 27 exactly got him there. A violent attack on 1 Mr. Bernhardt followed. 2 Mr. Kay grabbed Mr. Bernhardt by the neck 3 and threatened him unless Mr. Bernhardt gave him 4 money. Mr. Jerome punched Mr. Bernhardt in the 5 chest and face. 6 Mr. Bernhardt was forced backwards into the 7 tub, he thinks by Mr. Jerome. He ended up 8 lengthwise with his head at the end of the tub by 9 the faucet. 10 Mr. Kay and Mr. Jerome kicked and stomped on 11 Mr. Bernhardt in the face, head, chest and neck. 12 When Mr. Bernhardt rolled onto his stomach to 13 protect himself, they stomped on his back. 14 Then Mr. Kay or Mr. Jerome took 15 Mr. Bernhardt's wallet out of his back pocket. 16 Mr. Kay threatened Mr. Bernhardt in order to 17 obtain his personal identification number. 18 Mr. Kay and Mr. Jerome then left the apartment. 19 Mr. Bernhardt suffered significant injuries. 20 He had two black eyes, a broken rib, bruising on 21 various parts of his body, and not surprisingly, 22 he was sore for weeks after the attack. 23 Mr. Jerome was arrested on January 25th, 24 2012, and has remained detained in custody since 25 that time, being a period of one year, four 26 months and 11 days as of today. 27 Mr. Fuglsang provided information to the 1 court about Mr. Jerome's background and 2 circumstances, and I also had the benefit of 3 several letters of support, one from a longtime 4 friend and one from Mr. Jerome's girlfriend and 5 one from his adoptive mother. The latter was 6 particularly helpful in providing background on 7 Mr. Jerome's childhood and allowing the court to 8 have some insight into the person he is. 9 Mr. Jerome is 23 years old and has a 10 Grade 10 education. He is aboriginal. He was 11 raised both in Inuvik and in Yellowknife, 12 spending 13 years in the latter. 13 It's probably an understatement to say that 14 Mr. Jerome had a rocky start in life. His 15 biological parents were both in gaol when he was 16 born, and I have no doubt that things would have 17 been much worse but for Brenda Jerome and her 18 husband, who took care of him as much as they 19 could, as his biological parents struggled. 20 These people, who I will refer to later as his 21 mother and father, were finally able to adopt 22 Mr. Jerome six years later. 23 In a letter that Mr. Jerome's lawyer 24 provided to the court, his mother, Brenda, 25 describes Mr. Jerome as a helpful son who has 26 never been abusive to either her or his father. 27 They both have health problems and he offers 1 assistance to them. 2 She also stated in the letter that 3 Mr. Jerome was diagnosed with fetal alcohol 4 syndrome when he was around four years old. Now, 5 I pause to point out that the court cannot accept 6 this as a proven medical diagnosis based on the 7 letter, for a variety of reasons. However, I 8 will come back to that point later. 9 The two other letters that were tendered 10 were helpful as well. Both of them described 11 Mr. Jerome as a person who truly wants to change. 12 His girlfriend, Colleen Hawkins, seems to be 13 prepared to offer Mr. Jerome a great deal of 14 support in changing for the better. 15 Sadly, Mr. Jerome has an uninterrupted 16 criminal record that dates back to 2002, when he 17 would have been 13 years old. There are 41 18 convictions; about half of them are property 19 related. There are four convictions for crimes 20 of violence and there are two convictions for 21 robberies. There are several convictions for 22 crimes against the administration of justice. I 23 will return to the matter of his criminal record 24 and how it factors in to my decision later. 25 I always find it useful to return to the 26 basic principles of sentencing that are set out 27 in the Criminal Code. The objectives are as 1 follows: Denunciation of unlawful conduct, which 2 is an expression of society's abhorrence of a 3 particular type of conduct; deterrence, both 4 aimed specifically at the offender and at the 5 public; separating the offender from society if 6 necessary; rehabilitation; reparation and 7 promoting a sense of responsibility in offenders; 8 an acknowledgment for the harm done to victims 9 and to the community. 10 The Criminal Code also sets out a number of 11 principles that guide judges in how they apply 12 these objectives. Judges have to consider 13 aggravating and mitigating factors and increase 14 or decrease a sentence accordingly. 15 Judges must also consider restraint and 16 similarity of sentence. Similarity of sentence 17 means simply that there should be similar 18 treatment for offences and offenders in like 19 circumstances. 20 The principle of restraint means that 21 imprisonment should be a measure of last resort, 22 and this requires consideration of all available 23 sanctions other than imprisonment that are 24 reasonable in the circumstances, with particular 25 attention to the circumstances of aboriginal 26 offenders. 27 The most important principle, the overriding 1 one, is proportionality, and it is articulated as 2 follows in the Criminal Code: 3 A sentence must be proportionate to 4 the gravity of the offence and the 5 degree of responsibility of the 6 offender. 7 There are a number of 8 aggravating factors that arise out of the 9 circumstances of this particular offence. The 10 victim was in a very vulnerable position. He was 11 essentially trapped in a bathtub and could not 12 escape from a sustained beating of blows and 13 kicks visited upon him by Mr. Jerome and Mr. Kay. 14 He was threatened. His injuries caused him pain 15 for weeks following the attack. 16 Mr. Jerome's criminal record is aggravating 17 as well. This is especially so in light of 18 previous convictions for crimes of violence. But 19 despite the aggravating factors, there are some 20 mitigating ones as well. 21 Mr. Jerome's guilty plea is highly 22 mitigating. It saves the court the time of going 23 through a trial and it saves the witnesses from 24 having to testify and relive the events. 25 In addition, Mr. Jerome's lawyer tendered a 26 letter that Mr. Jerome wrote to the court in 27 which you, Mr. Jerome, expressed remorse as well 1 as a recognition that you were responsible for 2 what happened and for changing your life. You 3 reiterated much of what was in that letter in 4 your personal oral submissions to the court, and 5 I find this very mitigating and very encouraging. 6 The Crown seeks a conditional sentence of 7 two and a half years or 30 months. Defence 8 submits that the sentence should be in the range 9 of 18 to 24 months. Considering all of the 10 circumstances, including Mr. Jerome's own 11 personal circumstances, I have concluded that a 12 custodial sentence of 30 months is necessary to 13 achieve the goals and objectives of sentencing. 14 Mr. Jerome bears a high degree of moral 15 blameworthiness in this case. From the agreed 16 facts, it appears that Mr. Bernhardt went to his 17 neighbour's apartment to socialize, and I think 18 it's fair to say he was expecting to have a few 19 drinks and go home. He probably was not 20 expecting to get into an argument about a debt, 21 and certainly he was not expecting to become the 22 victim of a violent crime. 23 What was carried out was an act of 24 unprovoked violence in a calculated and 25 deliberate manner. This is not a situation of 26 someone who flew off the handle, so to speak, and 27 lashed out. 1 Mr. Bernhardt was lured into the bathroom 2 where Mr. Jerome and Mr. Kay proceeded to punch, 3 kick, stomp and rob him. Frankly, I am 4 surprised, although very relieved, that the 5 outcome was not more tragic than it was. 6 The Crown submitted a number of cases from 7 various jurisdictions in support of its position 8 on the appropriate length of sentence. Despite 9 the fact that none of these cases has the same 10 fact situation as I have before me, something 11 which would indeed be highly unusual, there are 12 sufficient similarities in all of them, both as 13 to the offences and the circumstances of the 14 offenders, to suggest that what the Crown seeks 15 is within the acceptable range, thus satisfying 16 the principle of similarity. 17 The sentence I impose has to send a message, 18 both to the public and to Mr. Jerome, that 19 conduct that causes injury to others is 20 unacceptable. 21 Assaults in circumstances like this, where 22 there is excessive drinking, followed by 23 arguments and altercations, followed by violence, 24 followed by harm, are way too common in the 25 Northwest Territories. It just keeps happening. 26 Mr. Jerome is only 22 years old and already 27 has four convictions for violence against others 1 on his record. Short periods of incarceration 2 and community-based sentences have failed 3 completely to deter him. 4 My point is this: People need to know that 5 the law holds them responsible for their actions, 6 and if they act irresponsibly and if they break 7 the law and hurt others, there are real 8 consequences. In the circumstances, the sentence 9 that the Crown seeks, a 30-month custodial 10 sentence, will send that message. I'm not 11 confident that a lesser sentence would do the 12 same thing. 13 I have given a great deal of consideration 14 to Mr. Jerome's aboriginal status and his history 15 despite the severity of the offence and the 16 aggravating factors, and I have asked myself if a 17 non-custodial sentence or a period of less 18 incarceration and a community-based sentence 19 could be imposed that would achieve the ultimate 20 goal of rehabilitation. 21 As I indicated earlier, I think it's fair to 22 say, and actually perhaps an understatement, that 23 Mr. Jerome began life at a disadvantage, and as I 24 indicated, I am very encouraged by the fact that 25 he took responsibility for this crime and he 26 expressed remorse. But unfortunately, a 27 non-custodial sentence is just not realistic. 1 It's not just because of the severity of the 2 crime, but also because of Mr. Jerome's 3 significant criminal record for non-compliance 4 with court orders and directions. That makes it 5 abundantly clear that a community-based sentence 6 would not serve any rehabilitative purpose. 7 He has been almost entirely unsuccessful in 8 meeting obligations that have been imposed, and 9 in my view, to impose a sentence would just be 10 setting him up for failure. He will find himself 11 back in court, back in the correctional system, 12 no further ahead than he is now. 13 It may be tempting to think that a custodial 14 sentence serves less of a rehabilitative and more 15 of a punitive purpose than a community-based 16 sentence, and there may well have been a time 17 when that was true. But in this day and age, our 18 correctional facilities offer programs that can 19 and do allow offenders to rehabilitate themselves 20 and become productive, law-abiding citizens. 21 Rehabilitation can and does occur all the time in 22 correctional facilities. 23 Where the best place for rehabilitation is 24 will very much depend on the offender and the 25 circumstances of the offence, and in Mr. Jerome's 26 case, it's my view that rehabilitation has the 27 best chance of occurring inside of a correctional 1 facility. 2 Mr. Jerome was detained on the basis of his 3 criminal record prior to sentencing, and so he is 4 not eligible for enhanced credit for presentence 5 custody because of the provisions in the Criminal 6 Code. The custodial portion of the sentence 7 would, however, be reduced by the time that you 8 have spent awaiting disposition, Mr. Jerome. 9 Can you please stand up, Mr. Jerome? 10 Mr. Jerome, upon being convicted of stealing 11 a bank card, business cards and a jacket from 12 Tony Bernhardt, and wounding him at the same 13 time, and upon consideration of the 14 circumstances, the nature of the offence, as well 15 as your own personal circumstances, I sentence 16 you to a term of 30 months in prison. This will 17 be reduced by the amount of time you spent in 18 custody awaiting the disposition of your case on 19 a one-to-one basis, which is as of today one 20 year, four months and 11 days. 21 Do you understand? 22 THE ACCUSED: Yes. 23 THE COURT: You can sit down, Mr. Jerome. 24 There will also be an order for bodily 25 fluids to be taken from you for DNA analysis and 26 an order prohibiting you from possessing a 27 firearm or other weapons listed in section 109 of 1 the Criminal Code, and that will be in effect for 2 10 years from the date of your release. 3 Mr. Jerome, you have expressed what I 4 consider to be a sincere desire and a willingness 5 to change, and you need to change. You need to 6 change, because if you don't, you are going to 7 wind up in this position or perhaps an even worse 8 one again. 9 You are a young man, you have many years 10 ahead of you, and you have great insight into 11 yourself. Your mother, in her letter to the 12 court, indicated that you were diagnosed with 13 FASD when you were very young, and as I said, for 14 a number of reasons, it's not possible for me to 15 accept this evidence in court as proof that that 16 is in fact the case. But that's not to say that 17 you cannot follow up and explore that possibility 18 or the possibility of any other underlying 19 cognitive disability that you might have, and 20 explore the possibility of treatment for that, if 21 in fact that's the case. 22 So please use your time wisely when you are 23 in the correctional facility. Take advantage of 24 the programs that they offer, because that will 25 be a very good start on the path to changing your 26 life. You are a young man. You have many years 27 ahead of you, and you can change. 1 Counsel, is there anything else? 2 MR. JOHNSON: Not from the Crown, Your 3 Honour. 4 THE COURT: Mr. Fuglsang? 5 MR. FUGLSANG: No, Your Honour. 6 THE COURT: Very well. Mr. Fuglsang, can 7 I adjourn court or is there something else that 8 you require? 9 MR. FUGLSANG: No, ma'am, I'm sorry, that's 10 fine. 11 THE COURT: All right. The court is 12 adjourned. 13 ----------------------------------------------------- 14 PROCEEDINGS CONCLUDED 15 ----------------------------------------------------- 16 17 18 19 20 21 22 23 24 25 26 27 1 CERTIFICATE OF TRANSCRIPT 2 3 I, the undersigned, hereby 4 certify that the foregoing pages are a complete 5 and accurate transcript of the proceedings taken 6 down by me in shorthand and transcribed to the 7 best of my skill and ability. 8 Dated at the City of Edmonton, 9 Province of Alberta, this 22nd day of June, 2013. 10 11 12 13 _____________________________ 14 D. J. Halvorsen, CSR(A), RPR 15 Court Reporter/Examiner 16 17 18 19 20 21 22 23 24 25 26 27
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