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             R. v. Eeyeevadluk, 2017 NWTSC 66

 

                                                S-1-CR2016000007

 

             IN THE SUPREME COURT OF THE NORTHWEST TERRITORIES

 

 

 

             IN THE MATTER OF:

 

 

 

 

 

                             HER MAJESTY THE QUEEN

 

 

 

 

 

                                  - vs. -

 

 

 

 

 

                             KARMA EEYEEVADLUK

 

 

 

             _________________________________________________________

 

             Transcript of the Reasons for Sentence by The Honourable

 

             Justice S. H. Smallwood, at Yellowknife in the Northwest

 

             Territories, on June 15th A.D., 2017.

 

             _________________________________________________________

 

             APPEARANCES:

 

 

 

             Ms. J. Andrews:                    Counsel for the Crown

 

             Mr. R. Clements, agent

             for Mr. S. Fix:                    Counsel for the Accused

 

 

                  ----------------------------------------

 

                   Charge under s. 344(1)(b) Criminal Code

 

 

 

 

      Official Court Reporters


 

 

 

 

 

 

 

         1     THE COURT:            Karma Eeyeevadluk was

 

         2         convicted on February 9th, 2017, following a

 

         3         jury trial, of the offence of robbery,

 

         4         contrary to section 344(1)(b) of the Criminal

 

         5         Code.  The offence arose from an incident

 

         6         where Ms. Eeyeevadluk and two other

 

         7         individuals were involved in an assault and

 

         8         robbery of a taxi driver here in Yellowknife.

 

         9             Counsel are far apart in their sentencing

 

        10         submissions:  The Crown is seeking a sentence

 

        11         of four years imprisonment less credit for

 

        12         remand time.  Ms. Eeyeevadluk's counsel says

 

        13         an appropriate sentence is six to nine months

 

        14         incarceration less credit for remand time.  My

 

        15         task is to impose an appropriate sentence for

 

        16         this crime.

 

        17             The facts of the offence arise from the

 

        18         evidence led by the Crown at the trial as no

 

        19         defence evidence was presented.

 

        20             On February 25th, 2015, Ms. Eeyeevadluk,

 

        21         Bradley King and Denecho King, who are

 

        22         brothers, were passengers in an Aurora taxicab

 

        23         being driven by Matar Mahamud.  Bradley King

 

        24         was in the front passenger seat, Denecho King

 

        25         and Ms. Eeyeevadluk were in the backseat of

 

        26         the taxi.

 

        27             Mr. Mahamud picked up the passengers in

 

 

 

 

 

       Official Court Reporters       1


 

 

 

 

 

 

 

         1         N'dilo between 10 and 11 p.m. that night.  Mr.

 

         2         Mahamud recognized Ms. Eeyeevadluk from having

 

         3         picked her up on previous occasions.  When he

 

         4         picked them up, one of them showed him $10 and

 

         5         he asked them where they were going.  They

 

         6         first said Sissons Court, then Fort Gary

 

         7         Apartments.  He took the $10 and put it in his

 

         8         front left pocket of his shirt and began

 

         9         driving downtown.

 

        10             After they reached the area around Weaver

 

        11         and Devore, they asked the taxi driver to stop

 

        12         and go back to N'dilo.  Mr. Mahamud asked them

 

        13         why and they said they were looking for

 

        14         friends.  He told them at that point that they

 

        15         would not have enough money and he said they

 

        16         said to drop them off when the fare reached

 

        17         $10.

 

        18             So Mr. Mahamud drove back through Old Town

 

        19         and when the fare reached $10, which was just

 

        20         near Otto Drive, he told them that the money

 

        21         was spent.  They said "okay, then stop and we

 

        22         will get out".  Mr. Mahamud stopped and parked

 

        23         the vehicle.

 

        24             When Mr. Mahamud stopped the vehicle on

 

        25         Otto Drive, Denecho King grabbed him around

 

        26         the neck and held his right arm around his

 

        27         neck.  Bradley King began punching Mr. Mahamud

 

 

 

 

 

       Official Court Reporters       2


 

 

 

 

 

 

 

         1         saying "put the money down", "put the money

 

         2         down".  Mr. Mahamud tried to push the

 

         3         emergency button by the steering wheel which

 

         4         would alert his dispatcher to a problem.

 

         5             Karma Eeyeevadluk got out of the vehicle

 

         6         and opened the driver's door and grabbed his

 

         7         left hand and stopped him from pressing the

 

         8         button.  He was unable to defend himself. Ms.

 

         9         Eeyeevadluk then took money from his front

 

        10         left pocket of his shirt.  Mr. Mahamud thought

 

        11         he had around $50 in cash in the pocket, which

 

        12         had been the fares that he had earned that

 

        13         night.  He was able to use his knees to press

 

        14         the horn and Ms. Eeyeevadluk said to the males

 

        15         "guys, just run away".  They all then fled on

 

        16         foot.

 

        17             Mr. Mahamud related that he had lost

 

        18         consciousness when he was being choked and

 

        19         punched, that he was unable to breathe and

 

        20         that he was bleeding, that when he regained

 

        21         consciousness was when Ms. Eeyeevadluk had

 

        22         come to the door, opened it, and grabbed his

 

        23         hand.  He said that he was still feeling dizzy

 

        24         but that he knew that she had taken the money.

 

        25             Bradley King pled guilty to assault

 

        26         causing bodily harm on Matar Mahamud arising

 

        27         from this incident.  Denecho King pled guilty

 

 

 

 

 

       Official Court Reporters       3


 

 

 

 

 

 

 

         1         to assault causing bodily harm also.  I am

 

         2         advised by defence counsel that they received

 

         3         sentences of one year and four months

 

         4         imprisonment.

 

         5             Mr. Mahamud completed a Victim Impact

 

         6         Statement.  It was completed for the

 

         7         sentencing of Bradley and Denecho King but it

 

         8         describes his feelings during this incident.

 

         9             It is clear that the offence had a

 

        10         significant impact upon him and that is clear

 

        11         not only from the Victim Impact Statement but

 

        12         also from his testimony during the trial where

 

        13         he described the injuries that he suffered as

 

        14         well as the effects of the offence on him.

 

        15             He suffered physical injuries.  He lost a

 

        16         tooth, and he has had trouble sleeping.  He

 

        17         was off work for a period of time and when he

 

        18         returned to driving a taxi, he can no longer

 

        19         drive at night as he does not feel safe

 

        20         anymore.  The result is that he is not able to

 

        21         work the same amount of hours which means that

 

        22         he makes less money and, as he sends money to

 

        23         his family, that means that he has less money

 

        24         to send to them.  In his Victim Impact

 

        25         Statement, he says that he is considering to

 

        26         move somewhere else so that he can start over

 

        27         and feel safe again.

 

 

 

 

 

       Official Court Reporters       4


 

 

 

 

 

 

 

         1             Ms. Eeyeevadluk has a criminal record,

 

         2         which starts in 2014 and in Youth Court and

 

         3         continues to earlier this year, in March of

 

         4         2017.  She has 12 convictions.  Most of the

 

         5         convictions were entered after this offence

 

         6         occurred.

 

         7             So on February 15th, 2015, the date of

 

         8         this offence that I am sentencing her for

 

         9         today, at that point Ms. Eeyeevadluk had three

 

        10         convictions on her record.  All of them had

 

        11         been entered in Youth Court and they were two

 

        12         assaults and one failing to attend court.

 

        13             Since this offence has occurred, she has

 

        14         had convictions for break and enter, two

 

        15         convictions for theft under $5000, five

 

        16         convictions for failing to comply with an

 

        17         undertaking or a recognizance, and one offence

 

        18         of failing to comply with probation.

 

        19             The fundamental purpose of sentencing,

 

        20         according to section 718 of the Criminal Code,

 

        21         is to protect society and to contribute to

 

        22         respect for the law and the maintenance of a

 

        23         just, peaceful and safe society by imposing

 

        24         just sanctions.

 

        25             The objectives of the sanctions include to

 

        26         denounce unlawful conduct, to deter the

 

        27         offender from committing other offences, to

 

 

 

 

 

       Official Court Reporters       5


 

 

 

 

 

 

 

         1         separate offenders from society where

 

         2         necessary, to assist in rehabilitating

 

         3         offenders, and to provide reparations for harm

 

         4         done to victims and to promote a sense of

 

         5         responsibility in offenders.

 

         6             It is also important that the sentence is

 

         7         proportionate to the gravity of the offence

 

         8         and the degree of responsibility of the

 

         9         offender.

 

        10             I am also required to consider the

 

        11         sentencing principles in section 718.2.  There

 

        12         are a number of them and I will not refer to

 

        13         them all, but in particular section 718.2(e)

 

        14         is relevant to Ms. Eeyeevadluk as she is an

 

        15         Aboriginal offender.

 

        16             I have heard from her counsel regarding

 

        17         the background circumstances of Ms.

 

        18         Eeyeevadluk's life.

 

        19             She is 20 years old and was 18 years old

 

        20         at the time of this offence.  She has a son

 

        21         who is four years old, and she is anxious for

 

        22         when she can be out of custody and to be with

 

        23         him.

 

        24             Ms. Eeyeevadluk's mother is a residential

 

        25         school survivor.  Ms. Eeyeevadluk was born in

 

        26         Iqaluit and lived with her mother until she

 

        27         was apprehended and put in foster care.  She

 

 

 

 

 

       Official Court Reporters       6


 

 

 

 

 

 

 

         1         was in foster care until she was discharged at

 

         2         19 while she was in custody at the North Slave

 

         3         Correctional Centre.

 

         4             While living with her mother, her mother

 

         5         abused alcohol and Ms. Eeyeevadluk had to see

 

         6         her mother abuse alcohol and to be beaten up.

 

         7         Her years with her mother were chaotic.  They

 

         8         were marked by her mother's alcohol abuse and

 

         9         abandonment, once leaving her in a room alone

 

        10         with the door tied closed while her mother

 

        11         went out drinking.  While she was in foster

 

        12         care, she was the victim of sexual abuse.  She

 

        13         was homeless at the age of 13 and began to

 

        14         drink and do drugs.  She began a relationship

 

        15         with a man at 14 and had her son when she was

 

        16         15.  The relationship with this man was

 

        17         abusive, physically and emotionally, and

 

        18         ultimately she was able to end it when she was

 

        19         abused by him in public.

 

        20             When she was pregnant, Ms. Eeyeevadluk

 

        21         returned to school and completed her Grade 11.

 

        22             In my view, when you look at Ms.

 

        23         Eeyeevadluk's background, there are

 

        24         significant Gladue factors that need to be

 

        25         considered.

 

        26             I have reviewed the cases that have been

 

        27         provided by counsel.  I do not intend to refer

 

 

 

 

 

       Official Court Reporters       7


 

 

 

 

 

 

 

         1         to them in detail but I have reviewed them and

 

         2         they were helpful in coming to the sentence.

 

         3             Robbery is a serious offence.  The maximum

 

         4         punishment is life.  So it is one of the few

 

         5         offences that Parliament has decided that life

 

         6         imprisonment is available.  There is no

 

         7         minimum sentence for this offence, which means

 

         8         that the range of sentences available for

 

         9         robbery are broad.

 

        10             Deterrence also has to be a significant

 

        11         sentencing objective and that is reflected in

 

        12         the case law that has been provided.

 

        13             The case law in this jurisdiction has

 

        14         established that robbery of vulnerable

 

        15         persons, like taxi drivers, attracts a severe

 

        16         penalty.  The sentences are often considered

 

        17         in the number of years.

 

        18             The sentence in R. v. Rolfe, 2007 NWTSC

 

        19         05, was one of four years imprisonment less

 

        20         credit for the remand time.  In R. v.

 

        21         Qitsualik & Michael 2012 NWTSC 73, the

 

        22         sentences imposed were 30 months and a week

 

        23         and 26 months and a week.

 

        24             Of course there are degrees of robbery.

 

        25         Some are very serious and violent, others are

 

        26         less so.  Some involve the use of a weapon,

 

        27         others don't, and the circumstances of each

 

 

 

 

 

       Official Court Reporters       8


 

 

 

 

 

 

 

         1         robbery will vary and the role of each person

 

         2         involved also must be considered.

 

         3             I have to consider the principle of parity

 

         4         as well.  Bradley and Denecho King each pled

 

         5         guilty to an assault causing bodily harm, so a

 

         6         different offence, and also received sentences

 

         7         of 12 months and four months imprisonment.

 

         8             Looking at the aggravating factors, this

 

         9         was a robbery on a taxi driver at night.  Taxi

 

        10         drivers, along with other occupations like

 

        11         convenience store clerks, are vulnerable.

 

        12         They work alone, often at night, and are

 

        13         vulnerable to the clientele who they serve.

 

        14         They do not choose who enters their taxicab

 

        15         and each customer, they hope, simply wants a

 

        16         ride somewhere and is going to pay without a

 

        17         fuss.

 

        18             They also have to be always concerned that

 

        19         there are those who are more problematic.

 

        20         They deal with people who drunk, intoxicated,

 

        21         and those who don't have enough money, who are

 

        22         looking to get a ride for free, or more

 

        23         serious situations - people who might be

 

        24         violent or who want to take advantage of a

 

        25         vulnerable taxi driver by robbing them.

 

        26             Mr. Mahamud was vulnerable that night.  He

 

        27         was driving a taxicab alone.  There were three

 

 

 

 

 

       Official Court Reporters       9


 

 

 

 

 

 

 

         1         passengers and the situation involved him

 

         2         being attacked by the two males.  He was in a

 

         3         position that he could not defend himself or

 

         4         call for assistance.

 

         5             Looking at Ms. Eeyeevadluk's role, she did

 

         6         not instigate this incident and she did not

 

         7         join in the assault of Mr. Mahamud.  There is

 

         8         no indication that this was a planned event;

 

         9         rather, it seems that one of the King brothers

 

        10         started this incident and the other brother

 

        11         joined in.  So there was no planning and there

 

        12         was no weapon which was used in this incident.

 

        13             But Ms. Eeyeevadluk did not tell the King

 

        14         brothers to stop when they began this assault.

 

        15         She did not render assistance to Mr. Mahamud

 

        16         but instead she joined in the incident by

 

        17         opening the taxi driver's door, by preventing

 

        18         him from pressing the help button, and taking

 

        19         money from Mr. Mahamud's left front pocket.

 

        20         The incident, as I indicated, resulted in Mr.

 

        21         Mahamud suffering injuries and the effect on

 

        22         him has been long-lasting.

 

        23             Turning to the mitigating factors,

 

        24         Ms. Eeyeevadluk is a young person.  At the

 

        25         time of offence, she had a minor youth

 

        26         criminal record.  She is still only 20 years

 

        27         old and rehabilitation has to be a focus of

 

 

 

 

 

       Official Court Reporters       10


 

 

 

 

 

 

 

         1         this sentence.

 

         2             Ms. Eeyeevadluk has expressed remorse for

 

         3         this offence.  In her words to the Court last

 

         4         week, she spoke eloquently about her remorse

 

         5         and her regret for not calling the police and

 

         6         not doing more to help Mr. Mahamud, and I

 

         7         accept that she is sincerely remorseful for

 

         8         her actions.

 

         9             She also spoke of her desire to make

 

        10         changes, that she has had an opportunity to

 

        11         reflect on her life while she has been in

 

        12         custody.  Ms. Eeyeevadluk has an opportunity

 

        13         to deal with the issues in her life, to be a

 

        14         mother to her child.  And having been

 

        15         abandoned by her own mother and observed her

 

        16         own mother make bad decisions and abuse

 

        17         alcohol, I am sure that is not something you

 

        18         want for your own child, to have to see and

 

        19         experience the same things that your own

 

        20         mother put you through.  So Ms. Eeyeevadluk,

 

        21         you have an opportunity to stop all of that,

 

        22         to return to school, to be a mother to your

 

        23         child, and that involves you making better

 

        24         choices and not hanging out with the wrong

 

        25         people.

 

        26             The Crown has sought a number of ancillary

 

        27         orders which I will deal with first.

 

 

 

 

 

       Official Court Reporters       11


 

 

 

 

 

 

 

         1             This is a primary designated offence so

 

         2         there will be a DNA order so that

 

         3         Ms. Eeyeevadluk's DNA will be collected and

 

         4         stored in the DNA databank.

 

         5             There will be a firearms prohibition order

 

         6         pursuant to section 109.  It will begin today

 

         7         and end ten years following Ms. Eeyeevadluk's

 

         8         release from imprisonment.

 

         9             There will be the victim of crime

 

        10         surcharge as prescribed.

 

        11             Ms. Eeyeevadluk has been in and out of

 

        12         custody since her arrest on February 26th,

 

        13         2015 for this offence.  She has served other

 

        14         periods of imprisonment and some of the remand

 

        15         credit has been applied to other offences that

 

        16         she has been convicted of since February of

 

        17         2015.  I am advised that the unused credit

 

        18         amounts to 166 days.

 

        19             So giving Ms. Eeyeevadluk credit at the

 

        20         rate of one and a half to one, that equates to

 

        21         248 days of remand credit for 8.25 months of

 

        22         pre-sentence custody.

 

        23             So please stand, Ms. Eeyeevadluk.

 

        24             Ms. Eeyeevadluk, taking into account your

 

        25         circumstances, including the Gladue factors,

 

        26         the circumstances of the offence and the

 

        27         applicable sentencing principles, I am

 

 

 

 

 

       Official Court Reporters       12


 

 

 

 

 

 

 

         1         imposing a sentence of 20.25 months in

 

         2         imprisonment and giving you credit of 8.25

 

         3         months for pre-sentence custody, leaving a

 

         4         sentence of 12 months.

 

         5             You may be seated.

 

         6             Thank you, counsel.  Is there anything

 

         7         else that we need to address?

 

         8     MS. ANDREWS:          Not from the Crown, thank

 

         9         you.

 

        10     MR. CLEMENTS:         No, thank you.

 

        11     THE COURT:            All right, thank you, we

 

        12         will adjourn.

 

        13         -------------------------------------

 

        14

 

        15                           Certified to be a true and

                                     accurate transcript pursuant

        16                           to Rules 723 and 724 of the

                                     Supreme Court Rules,

        17

 

        18

 

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        21                           ____________________________

 

        22                           Lois Hewitt,

                                     Court Reporter

        23

 

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       Official Court Reporters       13

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