Supreme Court

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



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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

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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.

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14	PROCEEDINGS CONCLUDED

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1	CERTIFICATE OF TRANSCRIPT

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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.

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14	D. J. Halvorsen, CSR(A), RPR

15	Court Reporter/Examiner

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