R. v. Kuptana, 2017 NWTSC 11 S-1-CR-2015-000118 IN THE SUPREME COURT OF THE NORTHWEST TERRITORIES IN THE MATTER OF: HER MAJESTY THE QUEEN - v - MATTHEW JAMES KUPTANA
_________________________________________________________ Transcript of the Reasons for Sentence delivered by The Honourable Justice L. A. Charbonneau, sitting in Inuvik, in the Northwest Territories, on 19th day of January, 2017. _________________________________________________________
APPEARANCES: Mr. A. P. Godfrey: Counsel for the Crown Mr. J. K. Bran: Counsel for the Accused ---------------------------------------- (Charge under s. 271 of the Criminal Code of Canada)
N o i n f o r m a t i o n s h a l l b e p u b l i s h e d i n a n y d o c u m e n t o r b r o a d c a s t o r t r a n s m i t t e d i n a n y w a y w h i c h c o u l d i d e n t i f y t h e v i c t i m o r a w i t n e s s i n t h e s e p r o c e e d i n g s p u r s u a n t t o s . 4 8 6 . 4 o f t h e C r i m i n a l C o d e
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1 THE COURT: This morning I have to impose 2 a sentence on Matthew Kuptana for the sexual 3 assault that he committed on M. K. on April 26, 4 2015. This is following a sentencing hearing 5 that occurred this week in Inuvik. The 6 procedural history of this case is unusual and it 7 raised unusual issues in the context of this 8 hearing. I am going to refer to those briefly 9 this morning, but as I said yesterday, given the 10 very limited amount of time I had to prepare 11 these Reasons, I am going to file written Reasons 12 later on addressing these issues in more detail. 13 In those Reasons I will also outline in more 14 detail the reasons for the credibility findings 15 that I made after hearing the evidence presented 16 at the sentencing hearing. 17 The events leading to the charge occurred in 18 the early morning hours on April 26, 2015. 19 Ms. K reported the matter to the authorities the 20 same day during the evening. Mr. Kuptana was 21 charged that same night. Although his initial 22 choice as to mode of trial was to be tried by a 23 court composed of a judge and a jury and to have 24 a preliminary hearing, he eventually waived that 25 preliminary hearing and re-elected to be tried by 26 a judge of this Court sitting alone. The waiver 27 of the preliminary hearing and the re-election A.C.E. Reporting Services Inc. 2
1 occurred in October 2015. 2 On December 4, 2015, Michael Martin, who was 3 Mr. Kuptana's counsel at the time, wrote to this 4 court indicating that Mr. Kuptana wished to plead 5 guilty to this charge in another unrelated sexual 6 assault charge. On December 14, 2015 Mr. Kuptana 7 appeared before this Court in Yellowknife and 8 entered guilty pleas to those charges. At the 9 time the pleas were entered Mr. Martin confirmed 10 that they were voluntary and met the requirements 11 of Section 606(1.1) of the Criminal Code. The 12 sentencing hearing for both matters was scheduled 13 to proceed here in Inuvik at Mr. Kuptana's 14 request. 15 Some time before the date scheduled for the 16 sentencing the Court received a request to have 17 the matter spoken to on a regular Criminal 18 Chambers date in Yellowknife. On April 13th 19 Mr. Kuptana appeared again in Yellowknife, and on 20 that date Mr. Martin applied to be removed as 21 counsel of record. That application was granted. 22 Mr. Kuptana's current counsel, Mr. Jay Bran, was 23 also in attendance and indicated he was taking 24 over the representation of Mr. Kuptana. There 25 was reference at that time to the possibility of 26 an application to strike the guilty pleas. 27 Counsel agreed that the scheduled Inuvik A.C.E. Reporting Services Inc. 3
1 sentencing date should be cancelled given the 2 change of counsel and the time new counsel needed 3 to get instructions and determine what the next 4 steps should be. Counsel eventually confirmed 5 that there would be an application to withdraw 6 the guilty plea with respect to the charge 7 involving Ms. K. 8 That application proceeded on August 8, 9 2016. The Court dismissed the application on 10 August 23, 2016. The reasons for decision are 11 now reported at 2017 NWTSC 4. Counsel later 12 advised that a sentencing hearing with viva voce 13 testimony would have to take place because they 14 had not been able to reach an agreement on an 15 Agreed Statement of Facts on either matter. 16 The sentencing hearing on the charge 17 involving Ms. K was scheduled to proceed this 18 week. The sentencing hearing on the other matter 19 where facts are also disputed is currently 20 scheduled to proceed next month in Inuvik. The 21 hearings were scheduled to proceed on different 22 weeks at the request of counsel, given that there 23 was going to be contested evidence, and there was 24 a strong prospect that the Court would have to 25 make findings of credibility of the witnesses, 26 including the credibility of Mr. Kuptana. 27 The sentencing hearing proceeded this week A.C.E. Reporting Services Inc. 4
1 as scheduled. Ordinarily, when viva voce 2 evidence is called at a sentencing hearing, it is 3 because there is a dispute about some of the 4 alleged facts and that those facts are considered 5 sufficiently important by Crown, by Defence or 6 both, to be the subject of testimony. The rules 7 of evidence that govern a sentencing hearing are 8 somewhat relaxed. The party that wishes to rely 9 on a disputed fact has the burden of proving it 10 on a balance of probabilities. An aggravating 11 fact, or a prior conviction that is disputed by 12 Defence, must be proven by the Crown beyond a 13 reasonable doubt. These things are provided 14 for in the Criminal Code at Sections 723 and 15 724 and the principles were also outlined in 16 R. v. Gardiner, 1982 2 S.C.R. 368. 17 What was very unusual in this case was this: 18 The issue at the sentencing hearing was not 19 merely about a disputed fact or a disputed 20 aggravating factor, it was actually a disputed 21 element of the offence. Mr. Kuptana admitted 22 sexual contact with Ms. K but claimed it was 23 consensual. In other words, he claimed at his 24 sentencing hearing that he was not guilty of this 25 charge notwithstanding his guilty plea. 26 This gave rise to a number of issues and 27 many potential problems depending on what the A.C.E. Reporting Services Inc. 5
1 Court's assessment of the evidence would be. 2 For today's purposes, as I said at the 3 outset, I want to focus on the matters that are 4 relevant to the sentence that should be imposed 5 on Mr. Kuptana. 6 I will simply reiterate now what I said 7 briefly yesterday before I heard sentencing 8 submissions. My assessment of the evidence has 9 led me to reject Mr. Kuptana's version of how the 10 sexual contact came to happen and his claim that 11 it was consensual. I accept Ms. K's version of 12 how the sexual contact occurred, and it is on 13 that basis that I will sentence Mr. Kuptana. 14 Mr. Kuptana, of course, is entitled to know 15 why I rejected his evidence and accepted Ms. K's 16 testimony. I want to take the time to write 17 these reasons out to explain properly how I came 18 to this conclusion. I simply did not have 19 sufficient time last night or this morning to do 20 so. I will file written Reasons about this and 21 they should be treated as a supplement to what I 22 am saying this morning. Otherwise I would have 23 had to adjourn this matter and I did not want to 24 do that. I think it is in Mr. Kuptana's interest 25 to be sentenced today and perhaps have better 26 access to programs that might assist him with his 27 rehabilitation because we frequently are told A.C.E. Reporting Services Inc. 6
1 that although prisoners on remand have access to 2 programs in the jails, they are considered to be 3 a lower priority than serving prisoners. 4 I will now summarize the circumstances of 5 the offence based on the findings that I have 6 made. 7 At the time of these events Ms. K lived in 8 Ulukhaktok. Mr. Kuptana, who is also originally 9 from that community, lived in Inuvik with his 10 common-law spouse of some thirty years. Their 11 daughter Sandy, who was in her early twenties at 12 the time, also lived with them. Mr. Kuptana's 13 spouse is Ms. K's aunt, and Ms. K considered 14 Mr. Kuptana as her uncle. She had a good 15 relationship with them. 16 Ms. K came to Inuvik for a visit. The 17 initial plan was for her to stay with some other 18 people in Inuvik but in the end she stayed at the 19 Kuptana residence. On the Saturday night Ms. K, 20 Mr. Kuptana and Mr. Kuptana's spouse played TV 21 bingo for a while at the residence. They drank 22 beer while they did this. 23 After the beer ran out Ms. K suggested that 24 they go out to the Trappers bar. The three of 25 them went to the Trappers at around midnight and 26 stayed there until closing time. They then 27 returned to the residence. Although it is clear A.C.E. Reporting Services Inc. 7
1 that everyone was drinking, it is not entirely 2 clear how much beer everyone had, and that is not 3 surprising. However, there is no suggestion of 4 anyone having become grossly intoxicated that 5 night, and it appears everyone had a good time 6 throughout the evening and that there were no 7 problems or anything unusual about the evening. 8 A short time after they returned to their 9 residence it appears everyone retired to their 10 bedrooms. Mr. Kuptana and his spouse went to 11 their room, and Ms. K went to the spare room 12 where she had been staying. All the rooms are in 13 the upstairs portion of the house, as is the 14 bathroom. 15 Ms. K went to sleep on a mattress on the 16 floor. She was wearing clothes on the upper part 17 of her body. Although her evidence-in-chief was 18 that she was also wearing clothes on the lower 19 part of her body, she acknowledged in 20 cross-examination that it was possible that she 21 removed those clothes when she went to the 22 bathroom before going to sleep and that she went 23 back to bed without putting them back on. On the 24 whole I was left with a reasonable doubt as to 25 whether she actually still was wearing those 26 clothes when she laid down and went to sleep. To 27 the extent that the Crown's allegation is that A.C.E. Reporting Services Inc. 8
1 Mr. Kuptana removed part of her clothing before 2 sexually assaulting her and to the extent that 3 this could be characterized as an aggravating 4 fact, I do not find that fact has been 5 established beyond a reasonable doubt. 6 Ms. K woke up to Mr. Kuptana lying on top of 7 her. He was having sexual intercourse with her. 8 She told him to get out of her room. She tried 9 pushing him off but he was too heavy. He 10 continued having intercourse with her. 11 Eventually she stopped trying to push him off. 12 All he said to her during all of this was "you're 13 so tight nobody fuck you, you're so tight nobody 14 fuck you". When he was finished he got up and 15 left the room. She stayed in the bedroom, curled 16 up and went to sleep. 17 In the morning Ms. K left the house and went 18 walking around. She did not tell anyone right 19 away about this. She returned to the Kuptana 20 residence a few times during the day. Later on 21 in the evening she went to see a friend and told 22 her what happened. That same night she reported 23 the matter to the police. Mr. Kuptana was 24 arrested the same evening. He was initially 25 released but he was arrested in September of 2015 26 in relation to an unrelated matter. He has been 27 in custody since, a total of 488 days, roughly A.C.E. Reporting Services Inc. 9
1 16 months. Crown and Defence are in agreement 2 that he should be credited for this remand time 3 as part of this sentencing proceeding and that 4 the credit should be granted to him on a ratio of 5 one and a half day credit for each day of remand. 6 I will turn now to the circumstances of 7 Mr. Kuptana. He is 46 years old and is 8 Inuvialuit. He is comfortable speaking English 9 but his first language is Inuvialuktun. He was 10 born in Ulukhaktok. He has been in a 11 relationship with his spouse for almost 30 years 12 and they have four children. They got together 13 when they were teenagers, and Mr. Kuptana was in 14 fact still a teenager when they had their first 15 child. He has lived in Inuvik since around 2007, 16 2008 but returns to Ulukhaktok regularly. He 17 learned to hunt and trap at a young age and since 18 a young age has carried out traditional 19 activities out on the land. He has been going 20 back to Ulukhaktok to pursue those activities, 21 and he said he hopes to be able to continue those 22 activities in the future. 23 Alcohol and drugs have been a problem for 24 Mr. Kuptana. He has a criminal record which 25 spans from 1992 to 2014. There are gaps of a few 26 years here and there on his record. His lawyer 27 advised that those gaps correspond to periods of A.C.E. Reporting Services Inc. 10
1 time where Mr. Kuptana's drinking was under 2 control. The periods where there are clusters of 3 convictions correspond to periods of time where 4 he was drinking more heavily and also using 5 drugs. 6 Mr. Kuptana's parents abused alcohol when he 7 was growing up. As a child he often saw his 8 parents drunk. There was a considerable amount 9 of domestic violence in the home. Mr. Kuptana's 10 father beat his mother up on a regular basis. 11 Mr. Kuptana often saw his mother with black eyes. 12 He told his counsel that his father used his 13 mother as a punching bag. This appears to have 14 continued for years up until she was diagnosed 15 with cancer in the early eighties. Like so many 16 victims of domestic violence, his mother never 17 reported the abuse she was suffering to the 18 authorities, and Mr. Kuptana's father was never 19 held accountable for the way he treated her. 20 I have no doubt that growing up in this kind 21 of environment had an impact on Mr. Kuptana and 22 may have contributed to his own violence. I note 23 that he has one conviction for an assault that is 24 identified on his criminal record as a spousal 25 assault. Sadly, we know that many children who 26 grow up with violence repeat the pattern when 27 they are adults. This is particularly so with A.C.E. Reporting Services Inc. 11
1 domestic violence. 2 Mr. Kuptana started drinking when he was 13 3 or 14 years old, and he identifies this as having 4 been a problem for him pretty much from the 5 start. 6 Mr. Kuptana stopped going to school in Grade 7 5. In his evidence at the hearing he explained 8 that he was bullied in school and that made him 9 not want to go. I gather that his parents tried 10 to convince him and make him go back, but the 11 bullying continued and eventually he did not go 12 back, and his parents stopped trying to make him 13 go back. Although he stopped going to school at 14 a young age and does not have a lot of formal 15 education, it is noteworthy that Mr. Kuptana was 16 still able to hold various forms of employment 17 both in Ulukhaktok and in Inuvik. It is obvious 18 that he has skills and is able to be a productive 19 member of this community when his drinking is 20 under control. 21 Mr. Kuptana is an Aboriginal offender and I 22 have taken judicial notice of systemic and 23 background factors that have affected Aboriginal 24 people in this country and have contributed to 25 the over-representation of the Aboriginal 26 population in Canadian jails. I have also taken 27 into account the factors specific to A.C.E. Reporting Services Inc. 12
1 Mr. Kuptana's upbringing and background, the 2 things that his counsel talked about, including 3 his early exposure to a dysfunctional home 4 environment where there was considerable alcohol 5 abuse and violence. 6 Mr. Kuptana's counsel conceded that given 7 the nature of the offence there is no realistic 8 alternative to imprisonment in terms of 9 sentencing options, but he asks that I take into 10 account Mr. Kuptana's circumstances in assessing 11 his level of blameworthiness for this crime. I 12 have done so and I have taken all of this into 13 account, while at the same time recognizing, as 14 the Crown noted, that the victim of this crime is 15 an Aboriginal woman who was exposed to the same 16 systemic factors and disadvantages that Mr. 17 Kuptana was exposed to. Aboriginal people and 18 Aboriginal communities are entitled to the same 19 protection from the law as non-Aboriginal persons 20 in non-aboriginal communities. 21 Sexual assault is a serious crime and it is 22 unfortunately very prevalent in our communities; 23 it causes profound harm. That harm is felt no 24 less by Aboriginal victims in Aboriginal 25 communities than anywhere else. That harm has to 26 be recognized and reflected on sentencing through 27 sentences that make it clear that this conduct is A.C.E. Reporting Services Inc. 13
1 not tolerable. The court obviously does not have 2 the power to address and resolve the root causes 3 of these crimes but it has a duty, through its 4 sentences, to continue, relentlessly, to send a 5 message about how serious it is to take advantage 6 of someone and violate their personal and sexual 7 integrity for one's own sexual gratification. 8 This case is no different. This sexual 9 assault caused great harm to this victim. M. K. 10 prepared a Victim Impact Statement back in 11 October 2015. In that statement she describes 12 the effect that this crime had on her. The 13 things she writes about, the effect that this 14 crime had on her, is similar to what we often see 15 in Victim Impact Statements in sexual assault 16 cases. She talks about not ever being able to 17 trust again, how she feels damaged, broken. She 18 also talks about having lost her relationship 19 with her aunt and cousin who she was close to 20 before all of this. Beyond the harm the assault 21 itself caused, she has suffered other losses. 22 Counsel noted that the Victim Impact 23 Statement was completed more than a year ago and 24 has not been updated. Counsel commented that it 25 would have been helpful to have an update to know 26 whether the feelings she expressed in the Victim 27 Impact Statement might have changed or evolved or A.C.E. Reporting Services Inc. 14
1 whether there has been any change or beginning of 2 restoration of her relationship with her aunt and 3 cousin for instance. Ms. K was told by the Crown 4 of the possibility of updating her Victim Impact 5 Statement and she chose not to do so. She knows 6 what she wrote, and she chose not to add to it or 7 change it. I infer from this that what she wrote 8 in the Victim Impact Statement is still current. 9 Counsel also noted the evidence that Ms. K 10 returned to the Kuptana house a few times after 11 the incident before she reported it to police. 12 On the day in question, she did return and she 13 interacted with Mr. Kuptana. If this submission 14 was intended to suggest that Mr. Kuptana's 15 actions had perhaps less impact on Ms. K than one 16 might expect, I reject that suggestion 17 categorically. 18 Under the circumstances, given her 19 connection with these people and that she had 20 been staying there, her return to the residence 21 does not belie her assertion in the Victim Impact 22 Statement that the sexual assault affected her 23 profoundly. As was noted by the Supreme Court of 24 Canada and by many other courts, there is no 25 "standard reaction" or "normal reaction" to being 26 sexually assaulted. Continued contact with the 27 abuser is not unheard of; quite the contrary. A.C.E. Reporting Services Inc. 15
1 Some victims are in contact with their abuser for 2 years before they speak out, and some never speak 3 out. Ms. K's conduct after the day this 4 happened, her return to the Kuptana house, and 5 the fact that she did not report this immediately 6 that night or the next morning say nothing, in my 7 view, about the impact that this crime had on 8 her. 9 Besides, if there is any question about 10 whether the sexual assault still affects Ms. K 11 the answer came in the clearest of ways during 12 her testimony this week, almost two years after 13 these events. I observed her and heard her when 14 she testified. Because of the configuration of 15 this courtroom she was a few feet away from me 16 when she testified. When she got to the point of 17 describing what Mr. Kuptana did to her she became 18 extremely upset. She started to shake, she 19 cried, she had difficulty speaking. On several 20 occasions she heaved and it appeared to me she 21 was about to throw up on the witness stand. It 22 was abundantly clear to me during her evidence 23 that these events continue to have a severe 24 impact on Ms. K. 25 The sexual assault committed by Mr. Kuptana 26 was a major sexual assault as defined in the case 27 of R. v. Arcand, 2010 ABCA 363, which was adopted A.C.E. Reporting Services Inc. 16
1 by our Court of Appeal in R. v. A.J.P.J., 2011 2 NWTCA 02. This means that the starting point on 3 sentencing is three years. From this starting 4 point the sentence must be adjusted to reflect 5 any aggravating and mitigating features that 6 exist in the case. A starting point is not a 7 minimum sentence and it is not a mandatory 8 sentence. It is simply a gauge that assists the 9 court in crafting an appropriate sentence that 10 meets the objectives of sentencing and reflects 11 the seriousness of the conduct. 12 Here there are aggravating features. The 13 first is that Mr. Kuptana is Ms. K's uncle. She 14 was a guest in his house and had been a guest in 15 his house before. She had every reason to trust 16 and no reason to expect this to happen when she 17 went to sleep that night. This offence involved 18 a terrible breach of the trust between them. 19 The second aggravating factor is that she 20 was in a particularly vulnerable position when 21 this happened because she was sleeping. Our 22 Court of Appeal has expressly recognized this as 23 an aggravating factor in A.J.P.J. at 24 paragraph 12. 25 Mr. Kuptana's criminal record is also 26 aggravating. There are a number of convictions 27 for crimes of violence on that record, although A.C.E. Reporting Services Inc. 17
1 in fairness, he has no conviction for a sexual 2 offence and has never received lengthy jail terms 3 for any of the convictions on his record. This 4 offence is by far the most he has been convicted 5 of. Still, he has been in trouble over the years 6 as a result of his abuse of alcohol. 7 There is no evidence, as I have already 8 mentioned, that he or anyone else were grossly 9 intoxicated the night of these events. During 10 his testimony he said that he did not think the 11 alcohol he had that night had any effect on him. 12 I do not accept that Mr. Kuptana's actions that 13 night were completely unrelated to his 14 consumption of alcohol. I think alcohol played a 15 part in his conduct that night, and I think he 16 needs to think very seriously about the damage 17 that alcohol has caused in his life up to now, 18 the damage that he has caused to others, 19 including those he loves, while under the 20 influence of alcohol. 21 I am required to take into account any 22 mitigating factors that exist and in this case I 23 find there are none. I accept counsel's 24 submission that this sexual assault was an 25 opportunistic and impulsive act as opposed to 26 something that was planned or premeditated. I 27 have no difficulty with that submission, but the A.C.E. Reporting Services Inc. 18
1 spontaneity of an act is not a mitigating factor. 2 It simply underscores the absence of 3 premeditation which would, if it was present, be 4 an aggravating factor. The difference between a 5 mitigating factor and the absence of an 6 aggravating factor was also something that was 7 underscored by the Court of Appeal in A.J.P.J. 8 Defence counsel did not ask me to take 9 Mr. Kuptana's guilty plea into account in 10 mitigation, and rightfully so. Mr. Kuptana made 11 every attempt to resile from that plea, and as a 12 result of his position Ms. K had to testify at 13 this hearing, something that as I have already 14 noted, appeared exceedingly difficult for her. 15 The guilty plea has no mitigating value in this 16 case. Defence counsel noted that for at least a 17 short period of time after Mr. Kuptana entered 18 his plea, Ms. K may have had some relief from the 19 stress that she might be experiencing about the 20 prospect of having to testify about this. What 21 I think is that it must have been very difficult 22 for her to be told roughly a year ago that 23 Mr. Kuptana had pleaded guilty in this matter, 24 that he was accepting responsibility and that 25 there would be no trial, that she would not have 26 to testify, only to find out months later that in 27 fact he was no longer admitting the facts and she A.C.E. Reporting Services Inc. 19
1 would have to testify. Whatever comfort she 2 might have had for the period of time where she 3 thought she would not have to testify is by far 4 outweighed by having had to go through this 5 process and have it drag on until this week. 6 When he was given a chance to speak 7 yesterday Mr. Kuptana said he does not blame 8 Ms. K, that he takes responsibility for what 9 happened, and he hopes that she recovers from it. 10 He apologized and I understood him to say that he 11 hoped there could be healing from all of this and 12 that he would have the opportunity to be a better 13 uncle to her. 14 Of course one always hopes that there can be 15 healing. But Mr. Kuptana's expression of remorse 16 is at odds with his testimony, just hours before. 17 In his evidence he did not accept responsibility, 18 in the sense that he admitted sexual contact but 19 he portrayed his victim as having been the 20 initiator in all of this; he portrayed her as 21 having been quite provocative in the way she 22 initiated all of this. Mr. Kuptana's trial 23 testimony was that when he peeked into her room 24 after having gone to the washroom, when she saw 25 him she lifted both her legs up in the air, 26 spread them and exposed her vagina to him without 27 saying a word. He also said that she appeared to A.C.E. Reporting Services Inc. 20
1 enjoy the sexual contact, and that after he was 2 finished and got up she turned around, placed 3 herself on all fours facing away from him with 4 her buttocks facing him, which could only be 5 interpreted, I think, as an invitation by her to 6 continue the sexual activity. 7 The clear implication of Mr. Kuptana's 8 evidence and his position at this hearing was 9 that his niece falsely accused him of this 10 terrible crime to avoid potential consequences to 11 herself if her aunt found out about their 12 encounter; that she lied under oath and faked her 13 emotions on the witness stand, all of this to 14 shift responsibility from herself. I find it 15 very contradictory that he would paint his victim 16 with that brush and hours later claim to take 17 responsibility and be sorry for what he did. It 18 is not as though Mr. Kuptana had a lot of time to 19 reflect and gain insight into this matter between 20 the time he testified and the time he offered 21 those comments: all of this happened within the 22 span of a few hours. All this to say it is 23 difficult for me to reconcile his expression of 24 sorrow and apology with his sworn testimony. 25 I certainly hope that Mr. Kuptana will at 26 one point come to terms with what he has done and 27 take full responsibility for it, but it is A.C.E. Reporting Services Inc. 21
1 difficult for me to be convinced that he is 2 remorseful or has any insight into his conduct at 3 this point. Again, absence of remorse is not an 4 aggravating factor but genuine remorse is a 5 mitigating factor. I am unable to find any 6 indication of genuine remorse in this case. 7 I do accept that applying the principles set 8 out by the Supreme Court of Canada in Gladue and 9 Ipeelee, there are things in Mr. Kuptana's 10 background as an Aboriginal offender that reduce 11 his blameworthiness somewhat. But as I have 12 already noted, this has to be balanced against 13 the seriousness of the offence, its prevalence in 14 this jurisdiction, parity and the other 15 sentencing principles and objectives. 16 The Crown is asking me to impose a jail term 17 between three and four years. Defence is asking 18 me to impose a jail term of two and a half years. 19 Those positions are not as drastically far apart 20 as we sometimes see. 21 In light of the aggravating factors I cannot 22 see a basis for imposing a sentence below the 23 three-year starting point. The presence of 24 aggravating factors, in particular the breach of 25 trust and the added vulnerability of the victim, 26 require the imposition of a sentence that is 27 higher than the starting point, even taking into A.C.E. Reporting Services Inc. 22
1 account the need for particular restraint when 2 dealing with the sentencing of Aboriginal 3 offenders. 4 On the whole, in my view, the sentence has 5 to be in excess of the starting point in order to 6 properly reflect the seriousness of this crime 7 and the harm done to the victim. 8 The Crown has asked for a number of 9 ancillary orders and we will deal with those 10 first. This is a primary designated offence so 11 there will be a DNA order. It is also mandatory 12 that I make an order that Mr. Kuptana comply with 13 the Sexual Offender Information Registration Act 14 for a period of 20 years. It is mandatory that I 15 impose a victim of crime surcharge because I do 16 not have any discretion to waive it under the 17 present state of the law, so I make that order as 18 well. I will also order that any exhibits seized 19 in this matter will be disposed of or returned to 20 their rightful owner, whichever is most 21 appropriate, at the expiration of the appeal 22 period. There will also be a Section 109 23 firearms prohibition order commencing today and 24 expiring ten years after release. 25 Having heard the positions of counsel and 26 having heard evidence about Mr. Kuptana's 27 involvement with traditional activities, work A.C.E. Reporting Services Inc. 23
1 activities and sustenance activities out on the 2 land, I will grant him an exemption pursuant to 3 Section 113 of the Criminal Code for both 4 employment and sustenance purposes. I have taken 5 into account the factors that I am required to 6 consider in such matters including the fact that 7 Mr. Kuptana's criminal record does not include 8 convictions involving the use of firearms, the 9 fact that there were no firearms used in this 10 particular offence and the fact that there was no 11 extraneous violence in the commission of this 12 offence. A sexual assault is an inherently 13 violent offence but in this case there was no 14 additional physical violence used during the 15 commission of the act. 16 In imposing sentence I will also, of course, 17 take into consideration the time that Mr. Kuptana 18 has spent on remand. 19 Mr. Kuptana, I will ask you to stand please. 20 Mr. Kuptana, for the sexual assault on M. K., but 21 for the time that you spent on remand I would 22 have sentenced you to a term of imprisonment of 23 44 months, that is three years and eight months. 24 For the 488 days that you have spent on remand I 25 will give you credit for 24 months. That is the 26 maximum credit I am allowed to give you under the 27 law. So there will be a further term of A.C.E. Reporting Services Inc. 24
1 imprisonment of 20 months. You can sit down. 2 Mr. Kuptana, it is clear you have skills, 3 you have traditional land skills, you have work 4 skills, and you have been able to stay out of 5 trouble for periods of time in your life. I hope 6 that you recognize you also have it in you to do 7 very bad things when you consume alcohol. I know 8 this is the longest time you will ever have spent 9 in jail, and I really hope that you are able to 10 use that time to help you overcome the issues in 11 your past and your issues with alcohol and drugs, 12 so that when you are released you can contribute 13 to your community in the way I know you can and 14 that we never see you back again before the 15 courts. 16 ----------------------------------------------------- 17 18 19 20 21 22 23 24 25 26 27
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1 2 CERTIFICATE OF TRANSCRIPT 3 4 I, the undersigned, hereby certify that the 5 foregoing pages are a complete and accurate 6 transcript of the proceedings taken down by me in 7 shorthand and transcribed from my shorthand notes 8 to the best of my skill and ability. 9 Dated at the City of Edmonton, Province of 10 Alberta, this 29th day of January, 2017. 11 12 Certified Pursuant to Rule 723 of the Rules of Court 13
14 15
17 __________________________ 18 Darlene Sirman, CSR(A) 19 Court Reporter/Examiner 20 21 22 23 24 25 26 27
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