Decision Content
R v King, 2019 NWTSC 6 S-1-CR-2016-000118
IN THE SUPREME COURT OF THE NORTHWEST TERRITORIES
IN THE MATTER OF:
HER MAJESTY THE QUEEN
- v -
DENECHO NOEL CALVIN KING
_________________________________________________________ Transcript of the Reasons for Sentence delivered by The Honourable Justice A.M. Mahar, sitting in Yellowknife, in the Northwest Territories, on the 26th day of November, 2018.
_________________________________________________________
APPEARANCES:
Ms. J. Andrews: Mr. A. Godfrey:
Counsel for the Crown Counsel for the Crown
Mr. J. Bran: Counsel for the Accused
(Charges under s. 235(1), s. 239(1)(b), s. 268 of the
Criminal Code)
1 THE COURT: Introduction
2 I found Denecho King guilty after trial of
3 the second degree murder of John Wifladt and
4 aggravated assault on Colin Digness. Today I
5 must sentence him for those charges.
6 For the murder charge, the sentence is
7 mandated in the Criminal Code. It is life
8 imprisonment. The decision I have to make is how
9 many years Denecho King will have to spend in
10 jail before he is eligible for parole. The
11 Criminal Code says that it must be no less than
12 10 years and no more than 25 years. I also have
13 to decide what sentence he should receive on the
14 aggravated assault charge.
15 The Crown's position is that I should set
16 the ineligibility period at 17 years and that the
17 sentence for the aggravated assault should be 10
18 years concurrent. The Crown also seeks a number
19 of ancillary orders.
20 Defence asks that I impose a period of
21 ineligibility of between 10 and 12 years and a
22 sentence of five years concurrent for the
23 aggravated assault. They do not take issue with
24 the ancillary orders.
25 The Circumstances of the Offences
26 In my decision finding Denecho King guilty
27 of these offences, I referred to many details of
1 the evidence adduced at trial. This was
2 necessary because the case presented by the Crown
3 was circumstantial, and the interplay of the
4 significant amount of evidence had to be
5 addressed on the issue of who was responsible.
6 For the purpose of determining an
7 appropriate sentence, however, the facts are
8 relatively straightforward and limited.
9 John Wifladt, aged 39, and Colin Digness,
10 aged 41, were lifelong friends. They met up
11 around midnight in the early morning of December
12 14th, 2014. After drinking together at one or
13 two bars and a private party, they took a cab to
14 Colin Digness' apartment at the Sunridge
15 apartments in Yellowknife, arriving just after
16 4:00 a.m. They were both intoxicated.
17 Among several other decorations, Colin
18 Digness owned a set of three ornamental swords of
19 a Japanese design, which were displayed on a
20 stand in his living room.
21 There is no evidence of any aggressive
22 behaviour on the part of either of these men, and
23 I wish to make it clear that I consider both of
24 them to have been entirely innocent and without
25 any degree of fault for what eventually occurred.
26 Denecho King, then 22 years old, had been
27 drinking and partying with various people from at
1 least the afternoon of December 13th. There was
2 also an indication that he may have been using
3 cocaine. His behaviour was, at times, erratic
4 and violent and included throwing furniture
5 around, breaking a window and beating up a female
6 drinking companion in the back of a taxi.
7 At trial, I found that Denecho King was not
8 sufficiently intoxicated as to be incapable of
9 forming a specific intent. This is a specific
10 legal finding. I do not mean to suggest that he
11 was sober. He was clearly and substantially
12 under the influence of at least alcohol
13 throughout the afternoon and early morning of
14 December 13th and 14th, 2014. This does not
15 excuse his terrible behaviour, but it does help
16 to put it in context.
17 He wound up at the Sunridge apartments at
18 about 4:00 a.m., looking for a friend of his who
19 lived directly below Colin Digness' apartment.
20 Somehow he found himself upstairs in Colin
21 Digness' apartment, with the two longest swords
22 of the set in his hands.
23 The result was as I found at trial. Colin
24 Digness suffered multiple lacerations to his face
25 and eye, including a deep 9- to 10-inch
26 laceration to his forehead, and a 2-inch
27 laceration above his left eye, as well as a stab
1 wound to his abdomen.
2 John Wifladt suffered injuries which
3 included two stab wounds to the left upper back
4 of his torso, being roughly 2 inches and 8 inches
5 in depth. The deeper wound penetrated his chest
6 cavity, perforated his diaphragm and penetrated
7 his spleen, which caused massive blood loss and
8 led to his death. He also suffered two stab
9 wounds to his head which did not penetrate his
10 skull. John Wifladt died from blood loss a few
11 hours after arriving at the hospital.
12 The injuries suffered by Colin Digness have
13 potentially permanently affected his vision,
14 cognitive function and digestive system.
15 I made the following findings at trial about
16 culpability:
17 However Denecho King found himself in Colin
18 Digness' apartment, I do not believe he went
19 there intending to hurt anyone. The weapons used
20 were found on site, not carried by him. If
21 anything, based on his behaviour at other times
22 on the 13th and 14th, he was simply looking for
23 people to party with. Whatever happened,
24 happened very quickly.
25 I have no way of knowing exactly what
26 occurred in that apartment. The most likely way
27 in which this tragic event unfolded is that
1 Denecho King came into contact with John Wifladt
2 and Colin Digness as they were either entering
3 the building or going upstairs towards the
4 apartment. He followed them upstairs and into
5 the apartment, hoping to drink with them.
6 An argument ensued when they tried to make
7 him leave. He lost his temper, grabbed the
8 swords from where they were displayed and
9 attacked the two men. As soon as they were
10 incapacitated, he dropped the swords and left the
11 apartment and the building.
12 It is not necessary, at this stage in the
13 matter and dealing with non-essential facts, that
14 this supposition be proved beyond a reasonable
15 doubt. Specific details aside, this is what I
16 believe most likely happened, and in any event,
17 it is to Denecho King's benefit as it is the
18 least sinister interpretation of the facts.
19 I have no doubt, given the nature of the
20 injuries, that in the heat of the moment Mr. King
21 intended to cause bodily harm that he knew was
22 likely to cause death and he was reckless as to
23 whether death ensued. I do have a doubt as to
24 whether he actually intended to kill either John
25 Wifladt or Colin Digness. It was on this basis
26 that the convictions for second degree murder and
27 aggravated assault were made.
1 The Victim Impact Statements and the People Who
2 Testified in Court
3 A number of victim impact statements were
4 given to me. Many were read out loud in Court
5 last week at the sentencing hearing.
6 John Wifladt appears to have been a gentle,
7 thoughtful, productive and intelligent man. He
8 occupied a critically important place in his
9 family and should never have been taken from them
10 at the age of 39. The depth of the loss suffered
11 by those who loved him is staggering. He was
12 obviously deeply loved and is greatly mourned.
13 His death has had a terrible impact on those
14 around him. John Wifladt's parents and other
15 family members are still suffering deeply. This
16 was obvious. I wish there was something I could
17 do to help with that. I know that no matter what
18 happens here today, nothing will make up for
19 this.
20 When this process shifts, as it must, to
21 considerations of Denecho King's circumstances,
22 the characterization of the crime and what
23 constitutes a just sentence, please understand
24 that I have not forgotten you.
25 Colin Digness has suffered a terrible impact
26 from these events, too. He was very seriously
27 injured, and he is still deeply and permanently
1 affected. He lost his best friend. He is
2 profoundly traumatized by what happened.
3 I thank all of you for putting your sadness
4 into words. It took great courage. I hope that
5 in time you will be able to find some peace.
6 The victim impact statements are important
7 because they show how much harm, pain and
8 suffering was caused by Mr. King's actions.
9 The Legal Framework
10 Section 745.4 of the Criminal Code says
11 that in deciding the parole ineligibility period,
12 the Court has to take into account: a) the
13 character of the offender, b) the nature of the
14 offence and c) the circumstances surrounding its
15 commission.
16 The case of R v Shropshire provided guidance
17 about how this provision should be applied. Like
18 all sentencing decisions, the decision about
19 parole ineligibility must be made taking into
20 account the general sentencing framework set out
21 in the Criminal Code. It is part of determining
22 a fit sentence, and therefore governed by the
23 same fundamental principles of proportionality
24 that informs all sentencing decisions.
25 All the other usual sentencing principles
26 apply as well, including the special
27 considerations that govern the sentencing of
1 Indigenous offenders.
2 In cases of serious violence, particularly
3 murder, denunciation and deterrence, both
4 specific and general, are paramount. That said,
5 the Court should never lose sight of the
6 possibility of rehabilitation, particularly when
7 dealing with offenders who are relatively young.
8 Criminal Record
9 Denecho King has a criminal record. He
10 should not today be punished again for the
11 offences on that record, but his criminal history
12 is a relevant consideration, as it would be in
13 any sentencing. The offender's character is one
14 of the factors that is specifically referred to
15 in Section 745.5.
16 He has 38 previous criminal convictions, two
17 of which occurred after the commission of these
18 offences, 16 convictions for breaches of court
19 orders and 10 convictions for crimes of violence.
20 Of note is that he was on probation at the
21 time of this incident, having been released only
22 25 days before, after serving an 18-month
23 sentence for assault with a weapon.
24 I have been given the benefit of a thorough
25 presentence report. It includes useful
26 information about Denecho King's background. I
27 also have a letter from his mother, which I found
1 helpful.
2 I am required to take into account Denecho
3 King's circumstances as an Indigenous offender,
4 and I do. He is of Chipewyan descent. He grew
5 up in circumstances of violence, chaos and
6 deprivation.
7 He spoke in the presentence report of
8 spending his childhood never feeling safe. He
9 was singled out for particular mistreatment by
10 caregivers, which included allowing him to go
11 hungry, and he was sent away for behaviour
12 modification placements three times beginning
13 when he was 10 years old.
14 His brother Denezah spoke of this, saying: 15
I don't think he ever felt a part of our
16 family. He was always sent away.
17
18 The result was sadly predictable. He
19 dropped out of school at an early age. He ended
20 up, essentially, independent and living the life
21 of a criminal from the time he was 14. He
22 developed the capacity for serious violence. He
23 abused drugs and alcohol. He became someone who
24 never wanted to show weakness. His life hardened
25 him.
26 He was very close with one of his
27 grandmothers, by whom he felt truly loved. She
1 died when he was 12.
2 I was struck by his relationship with
3 Lawerance Chartrand and Laura Lorenzen. Due to
4 his difficult home life when he was a young boy,
5 Denecho King would often stay with friends, which
6 included these people. They say that they
7 consider him to be part of their family. While
8 they know he has a problem with alcohol, they
9 state that they have no concerns when he is
10 staying with them. They describe a kind, helpful
11 and considerate young man, who seems to be
12 completely at odds with the person we heard about
13 during this trial.
14 What this tells me is that Denecho King has
15 a choice. He can choose to be a better person or
16 he can choose not to, which means that there is a
17 hope for his rehabilitation and reintegration
18 into society.
19 Notwithstanding comments about maintaining
20 his innocence for the purpose of appeal, Denecho
21 King showed insight in his comments to the writer
22 of the presentence report. He wants to get
23 counselling for anger and substance abuse while
24 he is in custody. He wants to get training in
25 the trades so he can become a productive member
26 of the community.
27 I believe that he was sincere in his closing
1 remarks to the Court when he said the following: 2
3 I, Denecho Noel Calvin King, am deeply sorry
... deeply sorry. Nothing I say or do will
4 change the past.
5
6 Analysis
7 My interpretation of the Shropshire decision
8 and the law generally on the period of
9 ineligibility was greatly assisted by the
10 decision of the Alberta Court of Appeal in Ryan,
11 2015 ABCA 286, provided in the Crown's Book of
12 Authorities.
13 Justice Picard, writing for the majority at
14 paragraph 53 stated the following: 15
16 I read Shropshire as recognizing that the
10 year minimum period of parole
17 ineligibility is a category by itself.
... I read the reference to a "median" as
18 simply recognizing the practical reality that the "ordinary" or "typical" period of
19 parole ineligibility for second-degree murder may well be 10 years. Shropshire
20 ... at para 27 included this: "To this end, an extension of the period of parole
21 ineligibility would not be "unusual", although it may well be that, in the median
22 number of cases, a period of 10 years might still be awarded."
23
24 Further, in the conclusion at paragraph 54: 25
26 The estimation in Shropshire that perhaps as many cases are likely to involve the minimum
27 period as result in longer periods of ineligibility is quite plausible. In fact,
1 it reflects common sense. It is wrong, therefore, to characterize 10 years as
2 simply being the minimum available disposition.
3
4 In paragraph 57, Justice Picard lists as
5 examples some factors that have or might result
6 in an increase in the period of parole
7 ineligibility. While it is clear that the Court
8 of Appeal did not intend to provide an exhaustive
9 list, the 17 factors listed do provide compelling
10 guidance on the sorts of things a Court ought to
11 consider. They are: gratuitous violence;
12 targeting or luring of the victim; additional
13 degradation of the victim; murder committed while
14 on bail or probation; murder committed in the
15 presence of an innocent bystander or non-party;
16 an abuse of power; an abuse of trust; a gang
17 attack; circumstances of domination or control;
18 circumstances of retaliation, revenge or
19 enforcement; murder motivated by hostility
20 towards a minority or vulnerable group or members
21 of it; murder in service of obstructing justice
22 or cover-up; profit from the murder; murder
23 motivated by race, religion or gender; murder
24 committed in the context of a criminal
25 enterprise; preparatory steps leading to the
26 murder; and, finally, murder committed in the
27 course of committing other crimes. Only one,
1 murder while on bail or probation, applies in
2 this case.
3 The Crown and defence are substantially
4 apart in their positions. I have reviewed the
5 cases that were filed by counsel. I will say
6 that no two cases are exactly alike. What was
7 done in other cases can give some guidance, but
8 that is as far as it goes.
9 Murder exists on a spectrum, with some
10 offences occurring nearer to manslaughter and
11 some closer to first degree murder.
12 The cases of Corrigal and Mantla, referred
13 to by the Crown, are very close to first degree
14 murder. Both Harrison and Delorme involved the
15 strangling of helpless victims, where killing was
16 clearly the objective. Ryan was a shooting in an
17 ongoing criminal enterprise, where the victim was
18 lured to the scene.
19 As I stated in my decision at trial, I was
20 unable to find beyond a reasonable doubt that
21 Denecho King actually intended to kill anyone,
22 while clearly intending, as I said, in the heat
23 of the moment, to cause grievous bodily harm that
24 was likely to cause death. In this sense, this
25 murder falls closer to the manslaughter end of
26 the spectrum, which argues in favour of
27 restraint.
1 Dealing with the aggravated assault against
2 Colin Digness, this analysis leads to a different
3 conclusion.
4 The events that constitute an aggravated
5 assault also fall in a spectrum of both damage
6 and intention. If Colin Digness had succumbed to
7 his injuries, I would have found Denecho King
8 guilty of second degree murder in his death, not
9 manslaughter.
10 Defence counsel is correct when he states
11 that cases of manslaughter involving a knife
12 often result in terms of imprisonment in the
13 range of five years. Those offences, however, do
14 not typically involve the intention to cause the
15 sort of harm that I have found was intended in
16 this case. My findings on intention place this
17 aggravated assault at the very high end of the
18 spectrum.
19 This event was spontaneous. There is no
20 evidence that any sort of violence was
21 contemplated beforehand. Intoxication is not a
22 defence or, frankly, a mitigating factor, except
23 to the extent that it bolsters the impression of
24 spontaneity and allows the Court to consider more
25 fully the possibility of rehabilitation.
26 Every murder is violent and heartbreaking.
27 This is why Parliament has mandated a life
1 sentence with a minimum period of parole
2 ineligibility for those offenders found guilty of
3 it.
4 Considering the nature of this offence and
5 the circumstances of its commission, I find
6 virtually none of the sort of factors I referred
7 to earlier when I quoted the Alberta Court of
8 Appeal in Ryan the type of factors that are
9 typically found when Courts impose a period of
10 ineligibility greater than 10 years. The
11 character of the offender, however, causes me far
12 greater concern.
13 Denecho King was on probation on a serious
14 offence of violence for less than a month when he
15 committed these offences. He has a lengthy
16 criminal record, with numerous convictions for
17 violence.
18 These aspects have to be balanced, to some
19 extent, against his young age and by the
20 extremely difficult circumstances of his early
21 years, to which I pay particular attention given
22 his status as an Indigenous offender. Despite
23 these considerations, I still believe that a
24 period of ineligibility greater than the minimum
25 is warranted in this case.
26 A number of ancillary orders will be made.
27 They are not opposed.
1 There will be a DNA order as this a primary
2 designated offence;
3 There will be a lifetime firearms
4 prohibition order;
5 There will be a victim of crime surcharge in
6 the amount of $400.00.
7 Please stand up, Mr. King.
8 For the murder of John Wifladt, I sentence
9 you to life imprisonment, without eligibility for
10 parole for 12 years.
11 For the aggravated assault of Colin Digness,
12 I sentence you to 10 years' imprisonment
13 concurrent.
14 Close court.
15 _____________________________________________________
16 PROCEEDINGS CONCLUDED
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1 CERTIFICATE OF TRANSCRIPT
2
3 I, the undersigned, hereby certify that the
4 foregoing transcribed pages are a complete and
5 accurate transcript of the digitally recorded
6 proceedings taken herein to the best of my skill and
7 ability.
8 Dated at the City of Sault Ste. Marie, Province
9 of Ontario, this 17th day of December, 2018. 10
11 Certified Pursuant to Rule 723
12 of the Rules of Court 13
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16 _________________________
17 Kerri Francella
18 Court Transcriber
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