Decision Content
R v Deneyoua, 2018 NWTSC 34 S-1-CR-2017-000155
IN THE SUPREME COURT OF THE NORTHWEST TERRITORIES
IN THE MATTER OF:
DEREK JOHN ROSS DENEYOUA
Appellant
AND:
HER MAJESTY THE QUEEN
Respondent
_________________________________________________________ Transcript of the Reasons for Judgment delivered by The Honourable Justice A.M. Mahar, sitting in Yellowknife, in the Northwest Territories, on the 26th day of February, 2018.
_________________________________________________________
APPEARANCES:
Ms. A. Paquin: Counsel for the Crown
Mr. T. Pham: Counsel for the Accused
(Charges under s.266 x2, s.733.1(1) x3 of the Criminal Code)
1 THE COURT: Thank you, everybody. Have a
2 seat.
3 Mr. Deneyoua, that is you too. Thank you.
4 As I said this morning, I will order a
5 transcript of today's decision. I may
6 substantially edit it, so I would ask that the
7 transcript will be both sent in Word and regular
8 format, so I can edit it more easily.
9 Derek Deneyoua is before the Court appealing
10 a decision after trial with respect to sentence;
11 a trial on three charges. Though, I do not
12 believe there was much issue taken of the fact
13 that he was on probation at the time of the
14 commission of the offences. The question is
15 whether or not he committed the offences. He was
16 found guilty of two counts of assault and one
17 count of breach of probation. At that time, he
18 was facing two other charges of breach of
19 probation, on which he entered guilty pleas, and
20 was also sentenced on those charges. So in
21 total, he was sentenced on five charges.
22 The trial took place in October of 2017.
23 The events in question took place in August of
24 2017. Mr. Deneyoua was drinking with his
25 girlfriend and his cousin. He became upset for
26 some reason, hit or shoved his cousin down the
27 stairs causing his cousin to momentarily lose
1 consciousness, and struck his girlfriend in the
2 face with a closed fist after pushing her down on
3 the couch. He was found guilty of both of those
4 offences, as well as the breach of probation for
5 failing to keep the peace and be of good
6 behaviour.
7 Mr. Deneyoua was 34 years old at the time of
8 the commission of the offences; and he came
9 before the Court with 69 previous criminal
10 convictions, 18 of which were for offences of
11 violence, 28 of which were for offences contrary
12 to the administration of justice. He had four
13 previous assault convictions against the
14 girlfriend that he was convicted for assaulting
15 in October.
16 In submissions on sentence, the Crown
17 attorney sought five months on the assault
18 charge. He was looking for a total of between 10
19 and 12 months, taking into account the totality
20 principle and parity. Defence counsel was
21 seeking a period of incarceration of six to nine
22 months. The Crown was seeking a year of
23 probation in addition to the sentence. Defence
24 was not seeking probation.
25 The positions of the parties were
26 substantially apart. The Crown asked that the
27 two assault convictions result in consecutive
1 time while defence was seeking concurrent time.
2 Defence counsel suggested five months as well on
3 the assault on Mr. Deneyoua's girlfriend and did
4 not mention specific times with respect to the
5 other offences other than suggesting that both
6 the breach of probation and the other assault
7 charge be dealt with concurrently, and the more
8 recent breaches be dealt with consecutively for a
9 total of six and seven months.
10 There are essentially three issues before
11 the Court. The first has to do with the
12 application of remand time credit. Mr. Deneyoua
13 served 48 days prior to his trial. He was given
14 a one for one credit based on a misapprehension
15 of the evidence by the trial judge. Both Crown
16 and defence agree that this Court should apply
17 the 1.5 to one typical credit ratio based on this
18 misapprehension. I now do so. Mr. Deneyoua is
19 given a further 24 days of credit based on the 48
20 days of actual custody referred to in the Crown's
21 materials.
22 The other issues are, first; did the judge
23 err in not properly applying the principles in
24 Section 718.2(e) in the Criminal Code, in other
25 words, did he not give sufficient consideration
26 to what are commonly referred to as the Gladue
27 principles, also referred to the case of Ipeelee
1 both of which are Supreme Court of Canada
2 decisions.
3 The second issue is did the judge err in not
4 flagging counsel to the fact that he was
5 considering imposing a sentence in excess of what
6 the Crown attorney was seeking. If there was an
7 error, what should the result of that error be.
8 The third issue is did the judge err in imposing
9 consecutive time as opposed to concurrent time.
10 Dealing first with the issue of the Gladue
11 considerations. Counsel for the accused at trial
12 and at sentencing provided extensive information
13 about his background. Mr. Deneyoua has had a
14 difficult life. His father died when he was one
15 while his father was incarcerated. His mother
16 struggled with alcohol abuse. He grew up in a
17 home that was plagued by alcohol abuse and
18 violence. His mother is a residential school
19 survivor. Mr. Deneyoua was taken out of the
20 family home when he was nine years old and placed
21 in temporary care. He began drinking at the age
22 of 15 and very quickly developed a serious
23 addiction, which is a major factor in his
24 criminal record.
25 Despite this, he has been able to be
26 gainfully employed on regular occasions, he has
27 children, completed Grade 11, and engages in a
1 number of productive activities. But his record
2 is one of someone with a serious substance abuse
3 issue as well as serious recidivist issues. The
4 defence also suggests that I should find that the
5 sentence of the judge is overly harsh, and in
6 that sense, demonstrably unfit.
7 Dealing first with the Gladue issue. As I
8 have indicated, these considerations were clearly
9 in front of the judge. The sentencing judge is
10 presumed to know the law, and is not required to
11 make reference to all the sentencing principles
12 that he or she is applying. It was clear in the
13 reasons of the judge that attention was paid to
14 the circumstances of Aboriginal offenders in
15 small communities. The judge paid particular
16 attention to the circumstances of Mr. Deneyoua's
17 victim, his girlfriend, indicating that in small
18 communities, this sort of recidivist behaviour is
19 a "crushing and depressive thing."
20 The sentence takes into account the need for
21 a certain amount of reserve when dealing with
22 convicted persons with the accused's antecedents.
23 I believe that the judge did that, and I will
24 have more on that when I conclude my reasons.
25 With respect to the application of
26 consecutive versus concurrent time, this is also
27 something that had been requested by the Crown
1 and not by the defence. These were two separate
2 assaults on two different people occurring at
3 different times. They may have occurred very
4 shortly before one another, but on the facts as
5 found by the judge and as indicated by the
6 evidence, Mr. Deneyoua's cousin was first
7 assaulted. Mr. Deneyoua's cousin did not even
8 see the assault on the spousal complainant, but
9 he did notice a bruise on her jaw when he
10 attended upstairs.
11 This was not one continuous event, but
12 rather two separate events on the same evening.
13 It is clear that the trial judge had the
14 discretion to impose consecutive as opposed to
15 concurrent time, and he used that discretion. As
16 well, the fact that the accused was on probation
17 at the time of the commission of the offences is
18 a further offence, and it was up to the trial
19 judge, at that point, the sentencing judge, to
20 determine whether a concurrent sentence would be
21 appropriate. He decided instead to apply some
22 leniency in finding that the further breaches of
23 probation could be dealt with by way of a
24 concurrent period of time.
25 The total time that the judge gave was five
26 months on each of the assault charges, four
27 months on the breach of probation charge, and
1 four months concurrent on the further two
2 probation charges.
3 This sentencing took place after a trial.
4 The three charges on which Mr. Deneyoua received
5 substantive time are charges on which he was
6 found guilty, not charges to which he pled
7 guilty. It is clear, both in the older case law
8 and the new case law after Anthony Cook, that
9 significant consideration has to be given when
10 the Court is faced with a joint submission.
11 When guilty pleas are entered and the Court
12 wishes to exceed the range suggested by the
13 Crown, considerations also apply. In these sorts
14 of circumstances, as a matter of principle,
15 judges should allow counsel the opportunity to
16 make further submissions by informing them of the
17 judge's discomfort with the recommended range.
18 The difference in this case is relatively
19 minor. An issue of two months beyond the range
20 suggested by the Crown. On the other hand, the
21 judge did not impose 12 months of probation,
22 which he otherwise might have. His finding was
23 that the imposition of probation would simply be
24 further punishment of Mr. Deneyoua because his
25 ability to maintain sobriety and keep the peace
26 and be of good behaviour was severely limited as
27 evidenced by his record. He declined to impose a
1 probation order.
2 I do not believe I need to find one way or
3 the other as to whether or not the judge in this
4 case had to inform counsel, based on the
5 relatively minor difference between the final
6 sentence and the sentence requested at the top
7 end of the range by the Crown. The question is
8 whether counsel have been given an ample
9 opportunity to completely canvass what would
10 otherwise be their submissions before the Court.
11 As I indicated, the initial positions of
12 both the defence and the Crown were significantly
13 apart. The defence brought into issue all of the
14 Gladue considerations that I referred to earlier
15 through submissions. The defence requested
16 concurrent as opposed to consecutive time, and
17 the defence requested a significantly lower
18 period of incarceration. I fail to see how
19 knowledge that the Court was considering going
20 slightly higher than what the Crown had suggested
21 would have changed the submissions by the
22 defence, but in any event, those submissions were
23 fully made, they are fully before the Court on
24 this occasion, and I cannot say that there was
25 any procedural unfairness as a result of not
26 allowing the defence to make full submissions,
27 which is really the concern of the Court.
1 I will say as well that those procedural
2 considerations become less pressing the further
3 we move away from negotiated resolutions. As I
4 indicated, we are dealing with guilty findings
5 after trial and two relatively minor guilty pleas
6 on unrelated matters that were dealt with by way
7 of concurrent time.
8 So even if the judge was required to inform
9 counsel of the possibility that the Court would
10 go higher than the range suggested by the Crown,
11 that requirement or the lack of application of
12 that requirement did not result in any procedural
13 unfairness because all of these considerations
14 were made apparent both to the judge and to this
15 Court today. So what we are left with, really,
16 is the question of whether or not the sentence
17 given to Mr. Deneyoua is demonstrably unfit, and
18 that is the question that I must deal with.
19 As I said before, Mr. Deneyoua has an
20 unenviable criminal record. It is extensive, and
21 it is replete with violence. He is fortunate
22 that the Crown attorney decided to proceed by
23 summary conviction on these matters. The
24 approach of the Crown and the approach of the
25 judge indicate restraint as required by both the
26 Criminal Code generally and required by both the
27 Criminal Code and the appellate jurisprudence
1 with respect to sentencing Indigenous offenders.
2 The assault on his spouse was his fifth
3 conviction for assaulting the same spouse. It
4 was not a particularly minor assault. It
5 involved a punch in the face with a closed fist.
6 The assault on his cousin was also not minor, and
7 I echo some of the comments made by the learned
8 trial judge; this could have resulted in extreme
9 injury. Somebody being pushed or hit so that
10 they fall down a flight of stairs can easily
11 result in severe injury or even death.
12 Those of us who have been in this business
13 for a long time are unfortunately very aware of
14 how easily people can die. I am not suggesting
15 that this was an aggravated assault. I am not
16 suggesting that Mr. Deneyoua should be sentenced
17 beyond his conviction for simple assault, but
18 this falls at the upper end of the range for
19 simple assaults, and, again, the range must be
20 seen in the context of what is available with
21 respect to elections. You do not simply stop the
22 range at six months and say that that is the
23 absolutely worst possible offender and the worst
24 possible offence.
25 The range goes anywhere from zero to five
26 years based on how the Crown would choose to
27 elect. This is definitely at the upper end of
1 the range for summary conviction assaults. And
2 as I indicated, the fact that this is the fifth
3 assault on his spouse is significantly
4 aggravating, and Mr. Deneyoua is fortunate that
5 the Crown did not proceed by indictment. This
6 places it at the very upper end of the range for
7 summary conviction assaults.
8 So the five months that was applied on both
9 of the assault charges is entirely within the
10 range. The four months on the breach of
11 probation which carries a maximum penalty of 18
12 months proceeded by summary conviction was also
13 not unreasonable. I am not suggesting that this
14 is the sentence that this Court would have
15 imposed. The question that I have to ask as the
16 judge on appeal is whether or not the sentence is
17 demonstrably unfit, and I find that it is very
18 clearly not.
19 So the sentence will stand.
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1 CERTIFICATE OF TRANSCRIPT
2
3 I, the undersigned, hereby certify that the
4 foregoing pages are a complete and accurate
5 transcript of the proceedings taken down by me in
6 shorthand and transcribed from my shorthand notes
7 to the best of my skill and ability.
8 Dated at the City of Yellowknife, Northwest
9 Territories, this 30th day of August, 2018.
10
11 Certified Pursuant to Rule 723
12 Of the Rules of Court
13
14 __________________________
15 Karilee Mankow
16 Court Reporter
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